The action is brought to recover the sum of $400. Plaintiffs had a contract with one Pollack and one Goodman to do certain work on a building. Pollack and Goodman got into financial troubles, and defendant, according to plaintiffs’ claim, promised that he would pay to plaintiffs all money due or to become due under their contract with said Pollack and Goodman, if plaintiffs would complete their work to be done under contract, and plaintiffs claim that they did complete and earned the $400 which they seek to recover. Defendant puts in issue the claim of the plaintiffs, and sets up the defense of res ad judicata. The court below held that a judgment of the Municipal Court, rendered in an action between these plaintiffs, as plaintiffs, and this defendant, said Pollack, said Goodman and the Ogden Lumber Company, as defendants, was a complete bar to plaintiffs’ cause of action herein, and the court directed a verdict for defendant.. Plaintiffs appeal. The action in the Municipal Court was to foreclose a mechanic’s lien and was for the same amount and the same work involved in the* case at bar. The Municipal Court gave judgment for the plaintiffs against Pollack and Goodman, for $308.42, and “ dismissed as to other defendants,” i. e., the defendant in the case at bar and the Ogden Lumber Company. Unless the complaint was dismissed as to this defendant on the merits, the judgment of the Municipal Court was no bar to the present action. There is no statement in the judgment roll that the dismissal was on the merits. Section 1209 of the Code, providing that a final judgment dismissing the complaint does'not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits, has no application to the Municipal Court. Stecher v. Free Sons of Judah, 45 Misc. Rep. 340, Appellate Term, Bischoff, J. *526The question, therefore, as to whether the judgment of the Municipal Court was or was not upon the merits was a matter for proof in the ordinary course, and the judgment roll was not necessarily conclusive. Stecher v. Sons-of Judah, supra. It appears from the record that in the Municipal Court action plaintiffs, under an amendment to their complaint, at the trial sought to hold this defendant as owner of the premises and under his promise to pay to plaintiffs "the amount due and to become due if plaintiffs would complete the work to be done under their contract with Pollack and Goodman, which is the same ground upon which plaintiffs seek to hold defendant in the case at bar, and at the end ‘of the trial of the Municipal Court action the plaintiffs’ counsel asked the "court: “ Does your Honor find there was no contract between plaintiffs and Bachrach (this defendant) ? ” To which the court replied: “Yes, sir; I shall find as a matter of fact. I do not think you have sufficiently sustained the burden of proof.” The only evidence which plaintiffs seem to have offered in the Municipal Court action in support of their claim of a contract with Bachrach, whereby they were to finish the job and he was to pay for it, was that of one of the plaintiffs to the effect that Bachrach said: “ You should continue the work and I will see to it.” The Municipal Court justice might very well have reached the conclusion that plaintiffs had not sufficiently sustained the burden of proof, and found as a matter of fact, upon a conflict of proof, that there was no such contract between plaintiffs and Bachrach. The latter swore positively in the Municipal Court action: “I got somebody else to do this work, Rado Brothers. I have paid them for that work. * * * I never had a contract with Cohen and Goldstein (plaintiffs).”
It seems to us that it must be held that the Municipal Court judgment was on the merits and is a bar to the plaintiffs’ cause of action herein.
The judgment and order should be affirmed, with costs.
Levehtbitt and Eblahgeb, JJ., concur.
Judgment and order affirmed, with costs.