#### Buhler *et al. v.*Hubbell *et al.*

*(Supreme Court, General Term, Second Department.*

May 12, 1890.)

1. Judgment—Res Judicata.

Where judgments in actions involving the rights of the parties under a certain agreement are modified so as to leave open the question whether a certain clause in the agreement was abrogated, and neither party appeals therefrom, an objection that such judgments are a bar to a subsequent proceeding to determine whether tho clause was abrogated is without merit.

2. Appeal—Final Order.

After entry of judgment, an order was entered to the effect that the judgment was not to be deemed to determine whether a clause in the agreement between the parties involved in the action had been abrogated. The parties agreed to a reference to determine the question. The referee found that the clause was abrogated, and an order was entered to that effect. *Meld,*that such order was in terms a final judgment, and appealable.

Appeal from special term, Kings county.

Action by Daniel Buhler and Elbert Stannard against Charles E. Hubbell, George A. Porter, Daniel W. Richards, and Morton B. Smith to enforce an agreement between all the parties to the action for the disposition and sale of certain vessels owned by the parties- as' tenants in common. There was judgment for plaintiffs, and the vessels were ordered sold. Subsequent to the entry thereof an order was entered to the effect that the judgment was not to be deemed to determine whether a clause requiring defendants Hubbell and Porter to pay plaintiff Stannard $1,500 for taking charge of the breaking up of the ships had been abrogated. The parties agreed to a reference to determine that question. The referee reported that the clause had been abrogated, and plaintiff Stannard now appeals from an order overruling his exceptions to the report.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Townsend, Dyett*16 *JSinstein,*for appellant. *Tracy, McLennan & Ayling*and *Payon Merrill,*for respondents.

Barnard, P. J.

The agreement between the parties contained this clause: “Hubbell and Porter are to pay fifteen hundred dollars as a bonus to Captain Stannard for taking charge of the breaking up of the ships. ” It was claimed by Hubbell and Porter that this clause was abrogated. The original judgment for distribution of fund, and settling rights of parties in other respects, left this question open, and it was referred by agreement to hear and determine. The referee found the clause abrogated, and the report was confirmed, and final judgment entered thereon. It appears that Hubbell and Porter commenced an action in Onondaga county, against the present plaintiffs and others, in respect to the same property referred to in this agreement, and their complaint was dismissed on the merits. This clause was not actually litigated, and the judgment as amended provided that the question of the abrogation of this clause be left open, and neither party be prejudiced by the judgment given. The original judgment was rendered in September, 1885, and the modification made in June, 1887. Both the judgment in Kings county and the Onondaga judgment left open this question, and neither party appealed from the order of reference in Kings county. The question is not *res ad judicata.*The parties were not the same. The adj udication of the $1,500 clause was not actually litigated in either action. Neither party appealed from either judgment as modified by leaving open this clause for future debate and contest. No case, I think, holds that pleadings in an action are enough to permit a litigation on a certain question which was not made, and, when the judgment leaves the question open, is subject to the rule of law that a judgment binds parties and privies not only as to facts actuating litigation,but also as to those facts which might have been litigated in the action. The case is not one where the special term arrested a judgment pending appeal, *255as was the case in *Genet*v. *Canal Co.,*113 N. Y. 472, 21 N. E. Rep. 330; nor like *Bostwick*v. *Abbott,*16 Abb. Pr. 419, where a judgment was a bar to a new action on the merits, but the court ordered that the judgment should not prejudice a new action. Here the judgments are so drawn as to leave out the very subject involved in the present proceeding. The judgment cannot be *res adjudioata*as to those matters it refuses to decide, and neither party-appeal from the determination. The evidence supports the finding as one of fact. The consideration for the abrogation of the clause was that Hubbell and Porter should induce one Cleary, who had a joint interest with the parties, to sell out the same to the plaintiff Sherwood. Hubbell so testifies: “They were willing to abrogate or cancel the clause * * * if we should, go to work in good faith, and help them out of their trouble with Cleary. ” The witness Porter stated that “the $1,500 clause was not thoroughly understood to be abrogated.” A witness, Smith, testifies that he heard Buhler say to Sherwood that the $1,500 clause had been abrogated. Another witness, one Richards, testifies that he heard Sherwood claim that the agreement, except the $1,500 clause, was still in force. There is direct proof going to sustain the clause, and a strong inference for the unreasonableness of the agreement, which was the consideration of the new agreement destroying the clause. The case on appeal is subject to the rule as to findings of fact. The dispute, when the testimony is so conflicting as it is in this case, must be decreed settled by the finding of the trial court therein. The order appealed from should therefore be affirmed, with costs. Ail concur.

MOTION TO DISMISS APPEAL.

Barnard, P. J.

There is no ground for dismissing the appeal shown in the moving papers. This case was tried, and judgment rendered thereon, on the merits, in March, 1887. In September following, an order was made to the effect that the judgment was not to be deemed to determine whether a certain clause in the agreement between the parties involved in this action was abrogated. In April, 1888, the parties agreed to a reference to determine this question. The referee found that the clause was abrogated. In January, 1889, the referee’s report was confirmed, and an order made that the clause was abrogated, and that distribution.of the fund involved be made on that basis. This order was appealed from by one of the plaintiffs. The motion to dismiss the appeal is' based upon the fact that this order was not the final judgment. This is not well founded. The preceding judgment left this question to be determined in the action, and it was so determined. The order, in terms, granted a final judgment of distribution on the basis of this report. The question is merely technical. The judgment first entered settled rights which none of the parties question. The original evidence and judgment have no place on the appeal from this one subject, which was decided upon the reference,, The order appealed from requires only the evidence given on this reference, and an appeal from this final order presents the only subject of controversy left. It was the final judgment so far as respects this appeal.

Motion denied, without costs. All concur.