#### Royal Live Fish Company, Appellant, *v.*Central Fish Company, Respondent.

First Department,

November 14, 1913.

New trial — evidence — former judgment establishing validity of contract — failure to plead former judgment — effect of failure to include in former action all claims arising on contract — pleading—judgment roll in former action introduced by plaintiff.

Although the Appellate Division has held that a contract for the sale of goods is unenforcible through lack of mutuality in that it did not bind the seller to deliver, the plaintiff on a new trial may introduce in evidence a prior judgment of the City Court allowing a recovery on such contract although the former judgment was not pleaded in the action in the Supreme Court, if it only could have been pleaded by way of reply and no reply was necessary or required by the defendant.

But where the action which the plaintiff brought in the Supreme Court for breach of contract had already accrued at a time when the action in the City Court was brought to recover a deposit made under the con*152tract so that it could have been included in the former action, the former judgment bars a recovery in the second action. And this is true, although the plaintiff’s several claims exceeded the jurisdiction of the City Court.

In the action in the Supreme Court it was not necessary for the defendant to plead the judgment of the City Court as a bar, for the evidence thereof was contained in the judgment roll introduced by the plaintiff.

Appeal by the plaintiff, Royal Live Fish Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 8th day of July, 1912, upon a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the New York Trial Term.

*Benjamin E. Messler,*for the appellant.

*George D. Mumford,*for the respondent.

Hotchkiss, J.:

Plaintiff sues for damages for breach of a contract to deliver fish. A judgment in its favor on a previous trial was reversed in this court (148 App. Div. 173) on the ground that the contract did not bind defendant to deliver any fish, and so lacked mutuality. On the second trial, resulting in the judgment from which this appeal is taken, plaintiff offered in evidence the judgment roll in an action brought by it against this defendant in the City Court to recover $1,700 deposited by it with defendant as “ liquidated damages ” for any breach of the contract on plaintiff’s part. In that action, the judgment in which was rendered before the first trial of this action, plaintiff alleged a failure on defendant’s part to deliver fish as provided for in the contract, and claimed a return of its (plaintiff’s) deposit. The defendant denied the alleged breach on its part, and set up • breaches by plaintiff for which it asked damages, and as well sought to recover the value of certain fish which it claimed to have sold and delivered to plaintiff under the contract. A trial of these issues resulted in a verdict in plaintiff’s favor for the amount of its deposit, upon which verdict judgment was entered. On appeal to the Appellate Term of this court the judgment was affirmed (123 N. Y. Supp. 213). In its opinion the Appellate Term said, a statement which the record of the case confirms, “the case was tried upon the theory that *153the plaintiff was entitled to a return of the deposit only if the contract was terminated as a result of a breach by the defendant, and that the defendant was entitled to retain the deposit if the contract was terminated as a result of "a breach by the plaintiff. ” The contract is dated August 1,1907. Deliveries had been made of but one carload per week for the three weeks immediately following the making of the contract, and “no further deliveries were made until the following May.” The learned trial justice of the City Court held that these undisputed facts constituted a breach of the agreement on defendant’s part, and directed a verdict in favor of plaintiff. The construction which the City Court put upon the contract was that it contemplated weekly deliveries by the defendant of at least one carload unless plaintiff requested more, which construction was approved by the Appellate Term. The plaintiff argues that this judgment is *res adjudicata*as to the proper construction of the contract and as to a breach thereof by the defendant; that it was binding upon the trial court in this action and that we should accept the construction so adjudicated rather than our own decision on the former appeal in this case. The City Court judgment was not pleaded in this action. ' Plaintiff claims that it was competent as evidence, and did not have to be pleaded. We think the plaintiff’s contentions on this point are sound. *(Reich*v. *Cochran,*151 N.Y. 122, 127; *Reynolds*v. *Ætna Life Ins. Co.,*160 id. 635, 651, 652; *Rudd*v. *Cornell,*171 id. 114.) The principle of these cases applies as well to questions of law arising upon the construction of a contract as to disputed questions of fact. *(Hirshbach*v. *Ketchum,*84 App. Div. 258; *Kohly*v. *Fernandez,*133 id. 723; affd., 201 N. Y. 561; *City of New York v. N. Y. City R. Co.,*193 id. 543; *Tonnele*v. *Wetmore,*195 id. 436.) The plaintiff was not estopped from claiming the benefit of the City Court judgment because of its failure to plead it as a defense or to introduce it in evidence on the former trial. The only way in which the plaintiff could have regularly pleaded the judgment was by way of reply, but no reply was necessary as a matter of course, nor was any reply required by the defendant. Under these circumstances, the judgment is not to be regarded differently from any other species of evidence, and it will not be contended *154that plaintiff on the second trial was estopped from offering any evidence not offered by it on the first trial, although such evidence might have been in plaintiff’s possession. It may be conceded that in a situation where a party is called upon to plead a prior judgment, his failure so to plead it will constitute a waiver, but no such rule can apply in a situation where the party has had no opportunity so to plead or was not required so to do. *(Beebe*v. *Elliott,*4 Barb. 457.) But the effect of the City Court judgment as an estoppel did not cease here, nor did it rest alone on the principle of *res adjudicata*which the plaintiff invokes.

We may concede that plaintiff’s cause of action to recover the deposit was based upon an implied contract on defendant’s part to return the money upon the termination of the contract by defendant’s breach of its agreement to deliver, and without breach on plaintiff’s part; that such breach by defendant was the cause *for*and not the cause o/plaintiff’s right to the deposit and that proof of the breach was the evidence by means of which the right to recover the deposit was shown. Conceding all this, it nevertheless is true that when the City Court action was begun, plaintiff’s cause of action for defendant’s breach of the contract had already accrued, and the claim for damages plaintiff seeks to enforce in this action could have .been included with its claim for the deposit in one action.

Under such circumstances the judgment in the City Court action precluded plaintiff from recovering in this action. *(Goldberg*v. *Eastern Brewing Co.,*136 App. Div. 692.) The fact that the amount of plaintiff’s several claims exceeded the jurisdiction of the City Court is immaterial and does not permit plaintiff to escape from the effect of the rule. It was not necessary for defendant to plead the City Court judgment as a bar because the evidence was contained in the record of that judgment introduced by plaintiff. *(Lorillard*v. *Clyde,*102 N. Y. 59.) _

The judgment should be affirmed, with costs.

Ingraham, P. J., Laughlen, Scott and Dowling, JJ., concurred.

Judgment affirmed, with costs.