This action is brought upon a contract made between the plaintiff and one Hugh J. Jewett, as receiver of the Erie Railroad Company, whereby the said Jewett, as such receiver, agreed to pay one fifth of the net profits arising from the business to be carried on upon certain premises, which plaintiff had agreed to assign to a corporation known as the “National Stock • Yard Company,” and in which corporation, by the recitals of the agreement, the Erie Railroad Company had become largely interested. The defendant, for a separate defense to the action, alleged in its answer that, prior to the commencement of this action, plaintiff had commenced another action in this court against said Jewett, as receiver, upon the same alleged contract, to recover under the contracts for the net profits alleged to have accrued from September 1, 1877, to October 1, 1878; that judgment had been entered in that action in favor of the defendant, and that, on appeal to the general term, such judgment was affirmed, (47 Hun, 635,) and that such judgment of the general term was affirmed by the court of appeals, (116 N. Y. 40, 22 N. E, Rep. 224,) and that, by such judgments so rendered and entered, there was a final judicial settlement and determination, conclusive upon both parties, of the issues in controversy; that one of such issues embraced in such final settlement and determination was as to the validity of said contract; *729and that, in and by the judgment so rendered and entered by this court and by the court of appeals, it was.adjudged that the said alleged contract, upon which this action is based, was and is without legal consideration, and void, as against public policy. The learned referee decided upon this trial that, by the said judgment in the prior action in the supreme court and the court of appeals, there was a final judicial settlement and determination, conclusive upon both parties, of the said issue, as to the validity of the said contract, which was determined by the said judgment to be void and invalid for want of legal consideration, and, as a conclusion of law, that the said judgments so rendered in the said actions between the plaintiff and the said Jewett, as receiver, are conclusive upon both parties and their privies as to the issues raised in said action, and determined by the judgments therein, and that there should be judgment in this action-for the dismissal of the complaint on the merits, with costs.
If this allegation in the answer, and this finding of fact of the referee, are sustained by the evidence, the legal conclusion is right, and must be affirmed. The sole question for us to determine, therefore, is whether there is any evidence in this action that the issue as to the validity of the contract sued on was presented to the court in the former action, and was there determined by the judgment either of this court or the court of appeals. The judgment roll entered in the former action was offered in evidence before the referee. From it, it appears that two defenses were interposed in that action: First, that there were no net profits, and nothing, therefore, due under the contract; and, second, that the contract was invalid for want of legal consideration. The issues in that action were referred to a referee, who filed his report, whereby he found as a fact that no profits were made from the business carried on at such premises, or from their use and occupancy, and as matter of law that the defendant was not indebted to the plaintiff in the sums mentioned in the complaint, or any part thereof, and that the defendant is entitled to judgment that the complaint be dismissed on the merits, with costs; and, upon such report, judgment was entered that the complaint be dismissed upon the merits. There was also introduced in evidence a notice of appeal to this court by the plaintiff from such judgment, and the judgment of this court adjudging that the said judgment appealed from was in all things affirmed, and also a notice of appeal from such judgment of this court to the court of appeals, and the remittitur from the court of appeals, in all things affirming the said judgment of this court, and the order of this court making the judgment of the court of appeals the judgment of this court. This record, standing by itself, would show that the judgment entered upon the report of the referee, and its affirmance by this court and by the court of appeals, was an adjudication that there were no profits made from the business carried on on the premises described in the contract, and that there had been no determination of the issue raised as to the validity of the contract.
There appears, however, in the case, as introduced in evidence by the defendant under the objection and exception of the plaintiff, an opinion of the general term of this court, and also an opinion of the court of appeals; and the only evidence to sustain the finding of the referee that the judgment of the general term and of the court of appeals was an adjudication that the said contract was void is what is claimed to be found in these opinions. We have now to determine whether such opinions of the appellate court, affirming a judgment of a court below, which disposes of but one issue in the case, is competent evidence to prove that such judgments of affirmance were adjudications of other issues in the case, not passed upon by the trial court, and where the judgment record on the appeal contained no adjudication except that the judgment be affirmed. In considering this question the distinction between the effect of the judgment as a bar or estoppel against the prosecution of a second action against the same claim or demand, and its effect as an es*730toppel in another action between the same parties upon a different cause of action, should not be lost sight of. “In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action. ” Cromwell v. County of Sac, 94 U. S. 352. And see Lewis v. Pier Co., 125 N. Y. 348, 26 N. E. Rep. 301, where Peokham, J., says: “In such ease, where the judgment may have proceeded upon either or any or two or more distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact must show affirmatively that it went upon that fact, or else the question is open for a new contention.” In Bell v. Merrifleld, 109 N. Y. 212, 16 N. E. Rep. 55, it was said: “So, in order to obtain the benefit of the prior adjudication of a fact, it is entirely reasonable to exact from the party asking its benefit clear proof that such adjudication has been made.” In other words, the burden of proof in this case is upon defendant to show that the adjudication in the prior action was an adjudication that the contract sued on in this action was invalid, and not binding upon this defendant. The judgment in the prior action that was appealed from, dismissing the complaint, might have been upon either of the several defenses set up in the answer. The record shows that that judgment was entered upon the report of the referee, who found that nothing was due under the contract. The record itself, therefore, shows that the judgment entered upon the report of the referee did not determine that the contract was invalid. The record thus showed that that judgment was in all things affirmed by the general term and by the court of appeals.
Is it competent to introduce evidence of the declarations of the judges who affirmed that judgment, either verbal or written,’or by their written opinions, or by their oral testimony, to show that the question determined was different from that in the record? I think not. The rule that allows oral testimony to be given as to what questions were actually determined upon the trial of the action has always been restricted, so far as I have been able to discover,—with one or two exceptions, which will be hereafter mentioned,— to what actually happened upon the trial of the action, and to the questions submitted for determination; and such evidence has always been limited to facts that are not inconsistent with the record, and do not impugn its verity. Thus, in Gardner v. Buckbee, 3 Cow. 127, the court, in stating the ground upon which such evidence is admitted, says: “It is true that the record merely proves the pleadings, and that judgment was rendered for the defendant. Without proof, it would not make out the defense. The record shows that it was competent on the trial to establish the fraud of the plaintiff. Whether fraud was made out, and whether that was the point upon which the decision was founded, must necessarily be proven by evidence extrinsic of the record. To do so is not inconsistent with the record, nor does it impugn its verity.” So in the case of Wood v. Jackson, 8 Wend. 17, the evidence admitted was, what question was submitted to the jury on the trial? But such evidence has never been received to contradict the record, or which is inconsistent with it; and I think it clear that the effect of these opinions as evidence, if they were admissible at all, was to contradict, the record,—that is, that the judgment affirming the judgment dismissing the complaint because of the failure to prove anything due under the contract was an adjudication *731that the contract sued on was void. Had the referee in this case written an-opinion in which he stated that he dismissed the complaint because the contract was void, and then filed the decision in question, would that opinion-have been admitted to show that the question that was determined was not. the question stated in his report, but was the question which the report did-not determine? Clearly not; and upon what principle, therefore, can the opinion of the appellate court, which in all respects affirms his judgment, beeompetent proof that their judgment is not an affirmance of the judgment entered on the decision of the referee, but an adjudication of an entirely different issue? If the defendant had desired to have this judgment entered as an adjudication as to the validity of the contract, it should have applied to the-appellate court to have inserted in its judgment of affirmance an adjudication as to the validity of the contract; but, such adjudication not appearing in the-judgment of affirmance, it must be deemed to have affirmed the judgment that was given by the referee. But assuming that the defendant could prove by competent evidence that the appellate courts, in affirming this judgment, adjudicated that this contract was void, I do not think the opinions of the courts, containing the reasons for their judicial action, are competent evidence of' what was so adjudicated. The opinions are no part of the record; and that on an appeal from an order or judgment the appellate court cannot look into-the opinion to ascertain the grounds upon which the court below proceeded, is settled by many cases, and is almost a universal rule. See Direct U. S. Cable Co. v. Dominion Tel. Co., 84 N. Y. 156; Hewlett v. Wood, 67 N. Y. 394. The opinion, being no part of the record, must be considered as nothing but the reasons of the judge or court for their judgment, and could certainly have-no greater weight than the testimony of the judge who wrote the opinion as-to his reasons for his judgment. It is settled that it would not have been competent to call a judge or juror who decided a case as a witness to state the-reason of his decision, or what was decided. Thus, in Agan v. Hey, 30 Hun, 594, the court say, in speaking of oral testimony to be given in such an. action: “But such evidence should be limited to proving what occurred upon the trial, the proofs which were given, the arguments and contentions of the-respective parties as to the facts and law of the case. I am of the opinion that it was error to receive the statement of the justice himself, as a witness, as to the ground upon which he placed his decision in the defendant’s favor. He was a competent witness to prove all that occurred before him, for that nowise contradicted the record which he caused to be made and entered in. his docket. The question whether a former suit is a bar to a pending one is-to be determined as a legal question from the record of the former suit, and the proceedings had upon the trial. Whether the rent was due or not was a question of fact, and it was not competent to prove by the justice how he determined that question. The mental conclusions reached by the magistrate on the law or facts of a case tried before him cannot properly be given in evidence. If his conclusions are the same as those he had inserted in the-record, then there was no necessity of proving the same. If they are in contradiction of the same, then they should be excluded for the reason that they contradict the record.” In the case of Bank v. Kupper, 63 N. Y. 618, mem., it was held “that the record, which is the highest evidence of what the court decided, showed clearly that the point was adjudicated the other way, as the-judgment of the special term was explicit, and this was affirmed; and that this court is bound by the record, even if the opinion contains adverse expressions. If there was a mistake in the judgment entered, the remedy was-by motion to correct.” The same question was presented to the supreme-court of the United States in the case of Packet Co. v. Sickles, 5 Wall. 592, In that case the defendant in error relied upon a former adjudication, and the jurors who determined the question in the former action were called to testify as to the grounds upon which they found their verdict; but the court held that the record of the former trial, together with the extrinsic proof, failed to *732show that the contract in controversy in that suit was necessarily determined in the former action, and, although the evidence of the jurors was received without objection, it was expressly held “that the secret deliberations of the jury, or grounds of their proceedings while engaged in making up their verdict, are not competent or admissible evidence of the issues or findings; that the evidence should be confined to the points in controversy on the former trial, and the testimony given by the parties, and to the questions submitted to the jury for their consideration; and then the record furnishes the only proper proof of the verdict.” I can see no reason why the written opinion of tile judges of the appellate court, giving their reasons for affirming the judgment, does not come within this rule. The ease of Birckhead v. Brown, 5 Hill, 634, appears to have adopted a different view; but no authority is cited to sustain that conclusion, and we think it should not be followed. The question here presented is different from that presented in Esterbrook v. Savage, 21 Hun, 149; for there the appellate court reversed the judgment entered on the trial before a referee, and- it entered a judgment dismissing the complaint in the action; and while in that case the learned justice delivering the opinion said that the court could consider the opinions upon the question as to what was really decided, as on the record there was no adjudication, he holds that, considering the opinions, there was no adjudication. That remark was necessary to the decision of that case. It does not appear that the opinion of the appellate court was introduced in evidence, and what was decided was that, considering the opinion, it did not appear that the questions at issue were res- adjudícala. We think the true rule is that stated in Packet Co. v. Sickles, supra: “If the record on the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter, as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde, consistent with the record, may be received to prove the fact; but even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.” That the evidence aliunde should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the question submitted for determination, and that unless it appears from such evidence and the record that the question was necessarily determined the parties are not concluded.
We think, therefore, that there was no evidence before the referee to sustain his finding that the former judgment was an adjudication that the con-' tract sued on was invalid, and that the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., concurs in result. O'Brien, J., concurs.