Opinion
November, 1913.
Taylor Fatt (Isidore Fatt, of counsel), for appellant.
Benjamin I. Shiverts, for respondent.
The material facts in this case are undisputed. The plaintiff herein began an action against the defendant in the City Court. The trial resulted in a verdict in favor of the plaintiff which was set aside by the trial judge, the plaintiff's complaint dismissed and a judgment for costs awarded the defendant. The defendant issued an execution and those costs were collected. The plaintiff appealed to this court and upon the hearing of the appeal the judgment in favor of the defendant was reversed and a new trial ordered in the City Court. The plaintiff then applied to this court for an order to show cause why an order of restitution should not be granted directing the defendant to return to him the costs awarded in the City Court and collected upon the execution issued by the defendant. The motion was heard and an order entered denying the motion, with leave to renew the same after the final determination of the action in the City Court. Thereafter the plaintiff brought this action in the Municipal Court to recover the costs paid by it under the execution and has obtained a judgment.
It was conceded upon the trial of this action that the action in the City Court is still pending undetermined.
The claim of the appellant herein is that the order of this court denying the plaintiff's motion for an order of restitution precludes the plaintiff from bringing an action in the Municipal Court until the final determination of the City Court action. In this contention we agree. The decision of the motion for restitution is in the nature of a judgment and it has been held that under certain circumstances the granting of such an order is imperative. Lott v. Swezey, 29 Barb. 87. Had the order been granted it could have been enforced by execution. The decision of the motion could not have been made by this court without involving the particular matter in controversy in the Municipal Court and therefore the right of the plaintiff to the relief asked for must be deemed to have been settled until another or different situation arose. To litigate the matter again would be to impeach the first decision. Williams v. Barkley, 165 N.Y. 48; McCall Co. v. Wright, 119 N.Y.S. 1011.
There is no doubt that the result of a litigation which takes the form of a motion may constitute a bar to another action involving the same question. Everett v. Everett, 180 N.Y. 461.
That in the first instance the plaintiff had a right of either form of action cannot be doubted (Kidd v. Curry, 29 Hun, 216), but having elected to resort to its motion it is bound by the decision thereon. None of the cases cited by respondent hold otherwise, although it has been held that the pendency of an action did not preclude resort by motion for the same relief. Market Nat. Bank v. Pacific Nat. Bank, 102 N.Y. 464.
Judgment reversed, with costs, and complaint dismissed, with costs, without prejudice to a new action after final determination of the City Court action.
SEABURY and BIJUR, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.