#### John H. Springer, Resp’t, *v.*Julius Bien *et al.,*App'lts.2

*(Court of Appeals,*

*Filed June 16, 1891,)*

Res ad.tudicata.

Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same *849parties, constitutes a bar, unless followed by a judgment based thereon, or into which the verdict or finding entered.

Appeal from order of the New York common pleas, general term, denying motion for a new trial.

*George F.*Danforth, for app’lts; *John W.*Boothby, for resp’t.

2

 Affirming 33 N. Y. State Rep., 1037.

Andrews, J.

The sole point relates to the effect of the judgment in the former action of the present defendants against the present plaintiff and others, as *res adjudicata*upon the question involved in this action.

This action is based upon an alleged employment of the plaintiff by the defendants under a contract that he was to act as their agent in procuring orders for their work, and was to receive as compensation ten per cent on all money realized by their firm from orders so procured. The relief demanded was an accounting by the defendants of moneys received by them subsequent to March 4, 1889, on orders obtained by the plaintiff before he left their employment, but upon which the moneys were not realized, until after that time.

The defendants in their answer do not deny specifically the contract alleged in the complaint, but set up among other defenses the judgment in the prior action as a bar to the claim in the? present one.

The former action was brought to restrain the use by the defendants therein of the name of “ The Central Lithographing and Engraving Company ” in the business of a corporation organized under that name by Springer and others after Springer had left the employment of the defendants. The plaintiffs in that action claimed the name as their trade mark and that they were exclusively entitled to its use. After issue joined, the case was heard before a judge at special term, who, after the evidence was closed, made findings of fact and law, upon which judgment was entered for the plaintiffs therein, among other things enjoining the defendants from using the name of “ The Central Engraving and Lithographing Company; ” and the judgment contained a further provision requiring the defendants and each of them to account to the plaintiffs for all contracts, letters or other property which may have been obtained by the defendant, John H. Springer, as the agent of the plaintiffs in the name of “ The Central Lithographing and Engraving Company,’’ and for such purpose William J. Fanning was appointed referree to take and state the account The claim is that this judgment is *res adjudicata*upon the claim for compensation upon which this action is brought. It is said that on the trial of the former action evidence was given as to the terms of the contract for compensation, from which it appeared that the ten per cent commission was only to be paid upon moneys received by the defendants on orders placed by Springer during his employment by Bien & Co., and that moneys received thereafter on orders procured by Springer, but which were unexecuted when his employment ceased, were not subject to the commission.

*850We are also referred to certain findings made by the trial judge in the former action, which, as claimed, sustain this construction of the contract. It is a sufficient answer to the claim of estoppel by the former judgment, that conceding that the evidence in that action warranted a finding that the present plaintiff was only to have commissions on moneys actually received during his employment, and that the findings bear the construction contended for, nevertheless, they were wholly irrelevant to the issues and did not enter into and were not involved in the final judgment

Neither the verdict of a jury nor the findings of a court in a prior action upon the precise point involved in a subsequent action between the same parties, constitute a bar unless followed by a judgment based thereon, or into which the verdict or finding entered. It is the judgment which constitutes the bar and not the preliminary determination of the court or jury. So also, and for obvious reasons, although judgment has been entered, the judgment does not prevent the relitigation of any irrelevant fact, although it may have been litigated and found in the prior action. We*bb*v. Buckelew, 82 N. Y., 555; *Stannard v.*Hubbell, 123 id., 528; 34 N. Y. State Rep., 413.

The question whether the contract for compensation included commissions on all orders procured by the plaintiff during his employment, upon which moneys should be realized by the defendants at any time, or only on orders procured, upon which money was realized during the employment, was immaterial to the judgment and relief granted.

The accounting provided by the judgment did not embrace the matter of compensation and that question was still open, notwithstanding the judgment, to subsequent controversy. The claim now made is not inconsistent with any matter adjudged in the former action, although it may have been covered by the evidence and embraced in the findings.

We think the judgment of *res adjudicate*was properly disposed of below, and the order should therefore be affirmed.

All concur, except Finch, J., absent.