(dissenting):
I do not concur in the affirmance .of this order. The relator was removed on the 11th of June, 1898, and presented a petition to this court alleging that his removal was illegal, and the relief asked was that he be reinstated by mandamus. Whether such removal was illegal was the question to be determined in that proceeding, and that question was determined against the relator, which determination was affirmed on appeal to this court and to the Court of *378Appeals. The relator now claims that because he did not allege in his petition that his removal was illegal under section 3 'of chapter 186 of the Laws of 1898, that adjudication is not a bar to this proceeding. A final order in a special proceeding has the same effect as a final judgment in an action (Code Civ. Proc. § 2082), and it must be conceded that if the relator seeks in this proceeding to obtain the same relief that he sought in the former proceeding, the former adjudication is a bar to this proceeding. The relator there claimed that his removal was illegal, and that he was entitled to be reinstated in his position. He might have made that claim upon two grounds: (1) Under the charter-of the city of New York; and (2) under the act of 1898, but in either case what he asserted was his illegal removal, -and the relief that he -asked was that he be reinstated. It seems to me that when he made.his application to be reinstated upon the ground that he was illegally removed, • a determination against him upon that application was a bar to another proceeding for a reinstatement, and he was not entitled to commence another proceeding, the final order denying his first application remaining in full force.
Certainly, in an action in which specific relief was asked, on the ground that the action of the defendant was illegal, the plaintiff, after judgment against him on the merits, would not be allowed to maintain a second action brought to obtain the same relief. The rule is thus stated in 21 American and English Encyclopaedia of Law (p. 204): “ It is the policy of the law to avoid repetition of suits; and where one action will include all there is in a case, any further action will be discountenanced and discouraged. A recovery on one' part of an action, if it be split up, will bar a suit for the whole or any part.” And the cases cited in the note support the statement in the text.
I think the order should be reversed and the proceeding dismissed.
Order affirmed, with costs.