It is very clear, we think, that the defendant is estopped from raising the question in this action as to the legality of the appointment of the plaintiff as general receiver. The whole subject was presented in a previous action between the same parties and is res adjudicata. In the action referred to the appointment of plaintiff as general receiver was alleged in the complaint and denied by defendant's answer in precisely the same language as in this action, and the same issue was framed and tried in that case as in the one now presented. It was found by the court in that case that the plaintiff was legally appointed receiver. The judgment based upon the findings in that case was a complete determination of the question now raised, and it is not the subject of review upon this appeal.
The rule is well settled that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation within the purview of the original action, either as matter of claim or of defense. (Pray v. Hegeman, 98 N.Y. 351; Jordan v. Van Epps, 85 id. 427, 436; Smith v. Smith, 79 id. 634; Clemens v. Clemens, 37 id. 59, 74.)
To ascertain what might have been determined in the former action, it is proper to look, beyond what appears on the face of the judgment, to every allegation, which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings. (Clemens v. Clemens, supra.) The findings and the judgment must generally show what was determined and they are conclusive on the subject.
In regard to the case now considered the legality of the plaintiff's appointment was expressly raised by the pleadings, litigated on the trial and determined by the court in a former action. Whether it was rightly or wrongly determined is a question that cannot be raised in this action. Even if the decision was wrong it does not impair the effect of the former *Page 453 judgment as a bar to the right to raise the same question, nor does it change the effect of the judgment because the amount recovered was not sufficient to entitle the plaintiff to appeal, as a matter of right, from the General Term to this court. It might as well be urged that the opposite party would not be bound when the right of appeal existed and the party failed to make the appeal. This rule would be more especially applicable here, as it does not appear that any application was made to the General Term to allow the defendant to appeal, and it, therefore, cannot be said that the defendant might not have obtained the permission to do so had he made an application for that purpose in due season.
Nor can it be said in this case that the question decided in the former action was immaterial to the issue, as it is apparent that the right of the plaintiff to maintain the action depended upon the legality of his appointment as receiver. The claim of the appellant's counsel, that the determination of the validity of plaintiff's appointment in sequestration was not necessarily involved in the former action, is not well founded. Although the justice found that the plaintiff was duly appointed receiver in the foreclosure case, he had previously found that prior to the commencement of that action he was appointed receiver in the sequestration proceedings; that the former action was for trespass upon property of the insolvent corporation committed prior to either of plaintiff's appointments as receiver. It was not a cause of action that accrued to him as receiver in the foreclosure proceedings, and he could only maintain the action by virtue of his general appointment. That action, therefore, depended in part at least upon the finding as to the validity of the general appointment, and it cannot be rejected as not necessary to sustain the judgment. There is, therefore, no ground for claiming that it rested entirely on the finding of the appointment of a receiver in the foreclosure proceedings.
The judgment was right and should be affirmed.
All concur.
Judgment affirmed. *Page 454