■ The complaint in the action brought by Snow against Reynolds may have been for either one of two causes of action: First, to recover against Reynolds on his liability as an innkeeper, or, second, to recover damages for his negligence or that of his hostler in carelessly letting Alderman take Snow’s, team away from his inn. In form it states but "one cause of action, but the allegations are sufficient under which a recovery might have been had on either one of the two theories mentioned. Nothing appears to show upon which theory the recovery was had. The plaintiff here seeks to hold the defendant liable over to him on the claim that he has suffered from a judgment caused by the defendant’s acts.
With reference to claims of that character it was said by Fol
“ The foregoing cases were brought by cities to recover sums which they had been compelled to pay to travelers on the streets for injuries caused by the negligent conduct of the defendants.”
The learned court at the Trial Term put the dismissal of the complaint on the ground that the judgment in- the Snow action, Upon which this-action is predicated, is conclusive-upon the plaintiff as to his’ own contributory negligence. I do not agree to that conclusion. Nevertheless, the -dismissal must be sustained because no -cause of action was established.
The burden was upon the plaintiff to establish his cause of action. In order to do so he was bound to show that the questions- at issue in this action were litigated and determined ip the former action. - In Rudd v. Cornell (171 N. Y. 114, 127) Martin, J., in writing the opinion of the court, said : “ It is settled by the decisions of this court that a judgment is conclusive in a second action only when the same question was at issue in a former suit and the subsequent action was between the same parties' or their privies, and that the conclusive character of a judgment extends only to the precise issues which were tried in the former action; they must' be identical in each action, not merely in name, but in fact and in substance, and the party seeking to avail himself of a former judgment must show affirmatively that the question involved.in the second action was material and actually determined in the former, as a former judgment will not operate as an estoppel as to immaterial or unessential facts, even though put in issue and directly decided. In other words, a former judgment is final only as to the facts which .are actually litigated and decided, which relate to the issue therein,
In Lewis v. O. N. & P. Co. (125 N. Y. 341) it was held that where a judgment may have proceeded upon two or more distinct facts the party seeking to avail himself of it in a subsequent action as conclusive evidence as to one of those facts, must show affirmatively that it went upon that fact. There' was ño effort to show here upon which of the two theories the former judgment proceeded. The plaintiff simply relied upon his judgment in order to entitle him to succeed. The burden was upon him to show that the judgment in the former action was upon issues that were precisely the same as those involved in this action, and in this respect he failed.
The judgment and order should be affirmed, with costs.
Cochrane, J., concurred; Smith, P. J., concurred in memorandum ; Kellogg, J., dissented in opinion, in which Sewell, J., concurred.
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City of Rochester v. Montgomery.— [Rep.
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Subnom. Robbins v. Chicago City.— [Rep.