dissent">Van Brunt, P. J. (dissenting):

There is no dispute in regard to the facts of this case. The single question presented is whether a certain judgment roll was improperly admitted in evidence upon the trial of this action.

It appears that on the 23d of January, 1891, an action was commenced by the plaintiff against the defendant to recover for services rendered by the plaintiff to the defendant. The allegations in the complaint were that, on or about the 25th of April, 1890, the defendant employed the plaintiff; that said employment commenced on the 16th of June, 1890, and continued until the 1st of January, 1891, at the agreed compensation or rate of $2,000 per year; that the plaintiff, at all times during said employment, performed the duties required of him by said defendant; that the defendant paid the plaintiff the sum of $500, leaving a balance due from the defendant of $583.33, and judgment was prayed for that *603amount. The defendant, answering, denied the allegations of employment and service, admitted the payment of $500, and denied that there was $583.33 due. The issues thus raised were, on the 13tli of November, 1893, tried before a jury and a verdict rendered for the plaintiff, and judgment was subsequently entered on the 16th of November, 1893, in favor of the plaintiff and against the defendant.

Upon an examination o£ the judgment roll in question, all that this judgment seems to have established was that the plaintiff employed the defendant from the 16th day of June, 1890, to the 1st day of January, 1891, at an agreed rate of compensation, which amounted to the sum mentioned in the complaint. It did not establish, or tend to establish, that the contract of employment was made on the twenty-fifth of April or at any time before .the actual service commenced, because the judgment would have been the same had the contract of employment been made on the sixteenth of June, when the service began. Neither does it establish that the rate of compensation was $2,000 a year, but only that, under the agreement of employment, whether a monthly or yearly compensation was agreed upon, it amounted at its termination to the sum found. And it is to be observed that the allegation of the complaint is that the employment terminated on the 1st of January, 1891, and this seems to have been the end of the contract. The defendant in that action certainly would from that complaint have no reason to suspect that a contract for a year, or a series of years, could be established by success in an action under a similar complaint. The cause of action set forth in the complaint was not amenable, under any possible circumstances, to the defense of the Statute of Frauds, and it is difficult to see how a defendant could be called upon to plead any such statute when he had no reason to apprehend from the allegations contained in the pleading that a contract was relied upon which was amenable to such a defense, and which, by its very terms, would refute such an assumption. The defense of the Statute of Frauds to a cause of action, such as was set out in the complaint, would have been frivolous.

On the 7th of July, 1892, the plaintiff commenced this action, alleging that on the 25th of April, 1890, the defendant employed him; that such employment was to commence, and did commence, *604on the 16th of June, 1890, and was to continue until one year from that date at the agreed compensation of $2,000 per year; that the plaintiff continued to act under such employment until the 1st of January, 1891, on or about which day the defendant terminated the contract of employment without any fault or neglect on the part of the plaintiff by discharging the plaintiff from the. employment; that the plaintiff, at all times between the 1st day of January, 1891, and the 16th of June, 1891, was ready and willing to perform the duties required from him under the term of said employment; that he endeavored to find employment and could not; and that, by reason of the breach of the contract on the part of the defendant, he had been damaged in the sum of $916.61.

The defendant answered, denying the contract of employment, the allegations of service and readiness for service and damage; and for a separate defense alleged that the contract sued upon by its terms was not to be performed within one year from the making thereof, and that neither said contract, nor any note or memorandum thereof, was ever made in writing and subscribed by the defendant, who is sought to be charged therewith.

These issues coming on to be tried, a jury was waived and the judgment roll in the first action was offered in evidence. This was objected to as immaterial, irrelevant and incompetent, and that it should have been pleaded affirmatively. The last objection has no weight. It seems to me, however, that it was clearly immaterial because it utterly failed to establish the contract that was sued upon in this action. It only established the contract that was alleged in that complaint, which was not a contract for a year, and in which no reference was made to a contract for a year; and there was nothing in the complaint which called the attention of the defendant to the fact that it would or could be claimed that any contract for a year had been entered into. Under such circumstances it does not seem to have had any tendency to establish a contract absolutely different from that which was alleged in the complaint in the first action, as has already been observed. The defendant had no reason to suppose from the allegations contained in that complaint, that a contract for a year was being relied upon. There was no intimation of anything of the sort. All that the defendant was bound to do was to meet the issue presented, and not to borrow trouble in respect *605to a different contract which the plaintiff might possibly have declared upon. If such a judgment roll is to establish this contract for a year under tlie guise of an action upon a contract of employment for six months, then a contract for a series of years might be established, of which the defendant may not have had the remotest idea or suspicion.

It is true that after the introduction of this judgment roll the defendant made an admission 'that a contract of employment had been entered into between the plaintiff and the defendant on the 25th day of April, 1890, the employment to commence on the 16th of June, 1890, and terminate on the 16th of June, 1891, at a salary of $2,000 a year, and that the plaintiff was discharged without any fault or neglect on his part; and that it was also conceded for the purposes of the present action that the plaintiff had been paid up to January 1, 1891, in cash and by the judgment in the first case. But it is difficult to see how this concession can enlarge the judicial effect of the judgment in the previous action. The effect of that judgment must be governed by the causes of action set out in that complaint, and the defenses contained in the answer. And its effect as a judicial determination cannot possibly go beyond that. If the claim made upon the part of the plaintiff in this action is well founded, then the extent of the judicial determination in the first action depends upon the knowledge of the defendant, and not upon the record. If the admission contained in the record before us extends the judgment, it has the effect above stated. It seems to be conceded that without this admission the first judgment would not have been conclusive. But because the defendant knew of a contract which was not declared upon, therefore the judgment in the first action established that contract. I do not think that the extent of judicial determinations, where there is no ambiguity in the record, can be enlarged by any such uncertain and unsatisfactory evidence as the rule claimed would permit.

I must, therefore, dissent from the prevailing opinion, as I think the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event, and the appeal from the order dismissed.

Judgment affirmed, with costs.

Citation profile

How this case has been treated — in progress