Patchen v. President of Delaware & Hudson Canal Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Francelia O. Patchen, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of February, 1901, overruling the plaintiff’s demurrer to the second defense contained in the defendant’s answer, and also from an interlocutory judgment entered in said clerk’s office on the 23d day of February, 1901, upon said order.
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Appeal by the plaintiff, Francelia O. Patchen, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of February, 1901, overruling the plaintiff’s demurrer to the second defense contained in the defendant’s answer, and also from an interlocutory judgment entered in said clerk’s office on the 23d day of February, 1901, upon said order. The plaintiff commenced an action against the defendant for false imprisonment. To the complaint in said action the defendant interposed an answer, admitting that it was…
1Opinion of the Court
Chase, J.:
Section 1209 of the Code of Civil Procedure provides: “A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it. is rendered upon the merits,”
A plea of former adjudication is fatally defective unless it alleges that the former judgment or decree was on the merits. (9 Ency. PI. & Pr. 619-621; 2 Van Fleet Form. Adj. 1327.)
The fact that costs of a former action between the same parties and for…
2Cases cited2 opinions
- Barton v. . SpeisNew York Court of Appeals · 1878
- Wessels v. . BoettcherNew York Court of Appeals · 1894
3Cited by3 opinions
- Wasserman v. BenjaminAppellate Division of the Supreme Court of the State of New York · 1904
- Hunt v. SullivanAppellate Division of the Supreme Court of the State of New York · 1903
- Hunt v. SullivanAppellate Division of the Supreme Court of the State of New York · 1903