#### STANTON v. HENNESSEY.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Judgment—Effect as to Third Persons.

In an action for the alleged fraud of defendant in securing plaintiff’s services to effect a sale of the land of a third person, the judgment roll of an action by plaintiff against such third person for his services, in which his complaint was dismissed, is not admissible in evidence against defendant

Appeal from Queens county court.

Action by Henry Stanton against John S. Hennessey. Judgment was entered on a verdict in favor of plaintiff for $939.21, together with $161.02 costs and disbursements, and defendant appeals. Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Benjamin W. Downing, for appellant.

E. V. B. Kissam, for respondent.

DYKMAN, J.

This action was commenced in the county court of Queens county. It was based upon the fraud of the defendant in procuring the services of the plaintiff, the claim of the plaintiff being that he obtained a purchaser of the farm of the father of the defendant at the request of the defendant, who represented himelf as clothed with authority from his father to employ the plaintiff for that purpose. The plaintiff brought a suit against the father to recover his commissions upon the sale of the farm, and his complaint was dismissed at the circuit. Thereupon this action was commenced, based upon the fraud of the defendant, as we have already stated. At the close of the trial, the judge directed a verdict in favor of the plaintiff for $539.25. The counsel for the defendant requested permission to go to the jury upon all the issues in the case, but his request was denied, and he took an exception. Upon the trial, the judgment roll in the action by the plaintiff against the father of the defendant was offered and received in evidence against the objection and exception of the defendant’s counsel. The plaintiff, as a witness in his own behalf, was asked upon what ground the complaint in his suit against the father of the defendant was dismissed, and he was permitted to answer, although the defendant’s counsel objected and excepted. The counsel for the defendant, at the close of the plaintiff’s case, moved to dismiss the complaint upon several grounds, and, among others, because it nowhere appears that the statements made by the defendant were not in every respect correct. The motion was denied, and there was an exception to> the denial.

The record discloses many fatal errors. In the first place, the commissions upon the sale of the farm can amount to only $330.50, and that is the full measure of the plaintiff’s damages in any event. Yet the verdict was directed for $539.21. It does not appear how that sum was made up. The plaintiff was erroneously permitted to state that he paid his lawyer in the first suit $50, and that may *856have been included in the verdict. The plaintiff cannot recover in this action any of his expenses in the suit against the father. That action was unnecessary so far as the liability of the defendant in this action is concerned. That was an unnecessary as well as an improper action, and certainly the defendant cannot be ■charged with the consequences of its failure. The admission of the judgment roll in the suit of the plaintiff against the father of the defendant was erroneous. Judgments are only evidence between the same parties, but the defendant was not a party to that suit. That judgment, therefore, can’ have no force against the defendant in any way.

Upon the merits, the judgment cannot be sustained. There is no proof that the defendant made any false representations. There is no proof that he did not have' authority from his father to say all he said. He did not say he had authority to sell, or to bind his father in any ivay. He simply said he had authority from his father to state to the plaintiff that, if he (the plaintiff) found a purchaser for the farm, his father would pay him the usual commissions, and there was no proof that he had not such authority.

It was erroneous to permit the plaintiff to state the grounds upon which the complaint of the plaintiff in his suit against the father was dismissed. That could be shown only by the record, and it was, moreover, immaterial in this case. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.