(dissenting):
The differences between the views of the majority of the court and our own in this case are narrowly limited. We may admit that but a single cause of action arises when death results from negligence, although there may be different grounds of liability, and several distinct remedies may be afforded under the common law and by statutes. Such statutes not only impose duties but create remedies. (Ward v. Erie R. R. Co., 230 N. Y. 230.) Agreeing that there was but a “ single wrong,” we differ in the effect to be given a judgment determining that a certain statute did not furnish any remedy under the facts presented.
As a matter of pleading the different grounds of negligence may be stated and the several remedies may be asked in one complaint. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436.) Grounds of liability thought to exist may in fact have no existence; and particular remedies given by statute may or may not be available, depending upon the facts disclosed on the trial. The several theories of negligence stated in the complaint and the remedies sought may then appear to be inconsistent, and the plaintiff be required to elect which remedy he will seek. In such case having made a choice, and having failed to secure the remedy he sought, he is thereafter estopped by election and waiver from bringing his action on another theory and seeking to avail himself of a remedy once discarded. (Donovan v. Cunard S. S. Co., Ltd., 119 Misc. 426, 427; affd., 206 App. Div. 751.)
There are cases in which this general 'rule may not be applied. A plaintiff may believe he has a cause of action given him by a certain statute and bring the action on that theory. If it turns out that he was mistaken and had no remedy, but made a futile *380pursuit of a fancied remedy under one statute where he had an actual remedy under another, the judgment previously rendered is not necessarily conclusive. (People ex rel. Warschauer v. Dalton, 52 App. Div. 371; Shepard Co. v. Taylor Pub. Co., 198 id. 638; affd., 234 N. Y. 465; Hogan v. New York Central & H. R. R. R. Co., 223 Fed. 890. See, also, Clark v. Heath, 101 Me. 530; Harrill v. Davis, 168 Fed. 187; Southern Pacific Co. v. Bogert, 250 U. S. 483.)
It is not enough that the transactions and subject-matter involved in and giving rise to the two actions are the. same. (Stowell v. Chamberlain, 60 N. Y. 272; Henry v. Herrington, 193 id. 218; Wells v. Town of Salina, 71 Hun, 559.) There must be identity with the cause of action previously determined or an election between inconsistent remedies to make the bar of the former judgment available as a defense.
The modern rule is that no question or contention is finally settled by judgment if it was not actually litigated, that is, supported or attacked by evidence, made the subject of the trial, submitted to the jury or pressed upon the consideration of the court. Otherwise stated, on a second suit seeking a different remedy although between the same parties, a judgment in a former action is not conclusive as to all matters which might have been litigated therein or came collaterally in question, but only as to such material points or questions as were actually in issue and adjudicated. (Griffen v. Keese, 187 N. Y. 454; Reynolds v. Ætna Life Ins. Co., 160 id. 635; Stokes v. Foote, 172 id. 327, 342.)
Here the plaintiff thought a remedy was furnished by a particular statute, to wit, the Federal Boiler Inspection Act. The complaint was framed on that theory and no other. At no time while plaintiff was in court was she required to elect between possible remedies she might have. The case was tried and submitted to the jury solely on the theory that defendant by violating that statute caused decedent’s death. It now appears that as a matter of law she never had a remedy under that statute. (See Luce v. New York, Chicago & St. L. R. R. Co., 209 App. Div. 728; affd., 239 N. Y. 601.) Under a different state of facts she now seeks a remedy given by another statute. The grounds of liability are not the same; the evidence necessary to establish the present cause of action and the remedy afforded are different. In my opinion it is no sufficient answer to say that there was but “ a single cause of action” arising by reason of her husband’s death. No cause of action based on the grounds of liability given by statute or common law has yet been tried. The sole question determined in the previous action was that the decedent met his death through no violation by defendant of the Federal Boiler Inspection Act. The *381plaintiff has only fruitlessly pursued a mistaken remedy. She had but a single course open against defendant, and that was to recover the damages she had sustained by reason of the decedent’s death caused through defendant’s wrongful act, and she has taken no action inconsistent with its enforcement. (Henry v. Herrington, supra.)
In my view of the facts the plaintiff would not have been permitted to offer proof on the different grounds of liability set forth in the first and second complaints, and ask for a verdict on any or all of them without prior election. They are entirely inconsistent in relation to the proof necessary to sustain them, and the measure of damages to be applied. There is not that identity between them that now makes the first a bar to the second. Identity must depend upon the nature of the case, the form of the action, the character of the pleadings and the evidence presented on the trial. (United States Fire Ins. Co. v. Adirondack Power & L. Corp., 206 App. Div. 584.)
One test that may be applied for determining whether a judgment in one action is a bar to another, is whether substantially the same evidence would establish the cause of action in each case. (International Paper Co. v. Purdy, 136 App. Div. 189.) By any test that may fairly be applied, the causes of action set up in the two complaints are not the same.
I cannot believe that it is the policy of the law to so penalize the plaintiff as to deny her a remedy actually given her under one statute because she made a mistake as to the legal effect of another statute and sought vainly to pursue a remedy not given her under the particular facts. She is still entitled to her fair day in court. (Troxell v. D., L. & W. R. R. Co., 227 U. S. 434; Hogan v. New York Central & H. R. R. R. Co., supra; Woodruff v. Producers’ Oil Co., 142 La. 368. See, also, Snow v. Alloy, 156 Mass. 193, 195.)
I, therefore, dissent and vote for affirmance.
Crouch, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.