The only question presented for determination in this case is whether the judgment recovered in Jenner v. Shope, 205 N. Y. 66, 98 N. E. 325, is res judicata in this'action. Whether it is to be so considered depends upon whether it was determined in that action that Jenner & Co. consisted only of William J. Jenner.
We think that this issue was adjudicated in the former action, and that the prevailing opinion in the Court of Appeals shows that this issue was necessarily involved. It is true that Judge Haight dissented in that case, on the ground that there was no evidence that William J. Jenner, in his lifetime, ever had a partner. The opinion of the majority of the court held that the evidence on this point, while weak, was sufficient. Thus Judge Cullen said:
“In answer to the suggestion that the evidence is insufficient to show that the deceased, Jenner, had no partner, it may be admitted that the evidence of the plaintiff’s attorney, sworn as a witness. on her behalf, is not strong; but it was sufficient to place the onus upon the plaintiff of showing that he had had a partner, if such were the case, for that was a fact presumptively within her knowledge.”
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.