Marcellus v. Countryman , 65 Barb. 201 ( 1873 )

By the Court, Mullih, P. J.

It is now settled that a judgment is not a bar to a second action for the same cause of action a former one was brought for, if, at the time of the rendition of the former judgment, the cause of action had not then accrued. (2 Cowen & Hill's Notes, 735, 736. Bull v. Hopkins, 7 John. 22.) It follows that paroi evidence is admissible to show that the demand in the second suit was not recovered for in the first. That fact might, occasionally, be proved by written evidence; but it can very rarely be so proved. The evidence of the juror was properly received.

The only verdict a jury, in a justice’s court, can render is for the plaintiff, or for the defendant, for such damages as they find the one or the other entitled to ; except in actions for the claim and delivery of property, in which they may find some other facts. The part of the verdict in relation to the note not being due was incompetent, and should have been excluded. But the same fact was established by another witness, and the defendant could not be prejudiced by its admission.

■ The appellant’s counsel insists that the note was- in fact due, at the time of the commencement of the first action, and that there'was no competent evidence that the time of payment had been extended. To render an agreement to extend the time of payment of a note or other demand valid, it must be supported by a good consideration. [Parmelee v. Thompson, 45 N. Y. 58.) The note was, by its terms, upon interest, and if any sum in addition to the interest was agreed to be paid, for the forbearance of said snm, the agreement to extend the time of payment was void for usury. (Vilas v. Jones, 1 N. Y. 274.) If it be lawful for the parties to a loan to agree that a sum in addition to interest may be lawfully paid, the usury laws may as well be repealed. All notes will be payable in a few days after date, and the borrower will be obliged to pay, for an extension of time, such sum as the lender may see fit to demand.

The defendant, having succeeded in defeating a recovery in the first action, on the ground that the note was not due, will be held, to be estopped from -settling up the falsity of that position, in the second suit. He must be held to the position taken in the first suit. It was a question for the jury, in the first case, to determine, upon conflicting evidence, whether an agreement to extend the time had been entered into. They found there had been. If they decided erroneously, either upon-the fact or the law, the error should have been corrected upon appeal in that action. Ho appeal having been taken, the verdict and judgment cannot be reviewed in this action.

When there is no conflicting evidence in regard to the liability of a party upon a claim on which a suit is brought, but the question of liability is one of law, solely, the refusal of the jury to allow such claim does not prevent the judgment in the action being a bar to a second action for the recovery of the demand.

What the jury said about the disallowance of the note, in the first action, was not competent, but the reason for its rejectiqn was proved by competent evidence ; and the admission of the statements of the jurors could not prejudice the defendant. Had there been any conflict of evidence, as to the ground for the disallowance of the note, we should feel constrained to hold that the evidence of what was said by the former jury might have had some influence in producing the verdict.. But in the case before us, I am unable to see how it could have had any improper influence on the minds of the jury.

[Fourth Department, General Term, at Rochester, April 1, 1873.

Mullin, Talcott and M H. Smith, Justices.]

btone of the rulings excepted to by the defendant seem to me to have been prejudicial to the defendant, after the proof by the juror was given, of the disallowance of the claim by the first jury.

The judgment must be affirmed.