First Department, February, 1922. [Vol. 200 was paid on account of the principal sum of said past due bond and mortgage. "X. No part of the balance of said principal sum, amounting to Twenty-seven thousand dollars ($27,000), has been paid and there is now due and owing to plaintiff said sum of Twenty-seven thousand dollars ($27,000), with interest from July 8, 1917, at the rate of five per centum (5%) per annum. * * * "XV. No agreement purporting to extend the time of payment of said principal sum of said bond and mortgage was ever executed and delivered by plaintiff, and the time of payment of said principal sum was never extended. "XVI. The payment of Three thousand dollars ($3,000) made on January 7, 1916, was a payment on account of said past due bond and mortgage.' And as conclusions of law, based upon said findings of fact, the court held as follows: "I. The principal of the bond and mortgage set forth in the complaint became due and payable on January 8, 1915, and the sum of Three thousand dollars ($3,000) thereafter paid on account of said principal sum was in reduction of said principal sum of said mortgage as past due. "II. No agreement purporting to extend the time of payment of the principal sum of said bond and mortgage was ever executed and delivered by plaintiff. "III. There is now due and owing to plaintiff as the owner and holder of said bond and mortgage the balance of the principal sum, amounting to Twenty-seven thousand dollars ($27,000), with interest thereon at the rate of five per centum (5%) per annum from July 8, 1917, no part of which has been paid." And upon the foregoing findings of fact and conclusions of law, the court decided that the plaintiff was entitled to judgment of foreclosure and for a sale of the said mortgaged premises, and judgment was entered thereon in accordance with said decision of the Special Term. Upon the sale in foreclosure a deficiency judgment was entered in favor of the plaintiff therein and against the defendant Mountain Construction Company for the sum of $2,539.60. Prior to the commencement of this action the plaintiff demanded repayment of the $3,000 alleged to have been paid as a consideration for the extension of said bond and mortgage, and, upon defendant's refusal thereof, brought the present action. The court, as before stated, ultimately granted plaintiff's motion for the direction of a verdict in plaintiff's favor for said $3,000, together with interest thereon, amounting to $3,525. App. Div. 1] First Department, February, 1922. I am of the opinion that the learned court erred in thus directing a verdict in plaintiff's favor. It seems to me, first, that the evidence clearly shows that the defendant never agreed with the plaintiff for an extension of the time of payment of said bond and mortgage, but that said agreement, so far as it ever was made, was with Haebler upon the consideration of Haebler's executing the extension agreement. The extension agreement which was tendered at the time of the payment of the $3,000, besides interest and expenses, was not executed by Haebler, as contemplated by the parties in their preliminary agreement, but was executed by the plaintiff, who, the evidence discloses, had no real financial interest in the transaction, and was acting merely in Haebler's behalf. It was not the plaintiff's money that was paid as a consideration for such extension, but, in fact, said funds were furnished and paid by Haebler. Plaintiff was seasonably notified of the refusal of the defendant to execute an extension agreement, except with Haebler, and demand was made that the latter fulfill his part of the agreement. This he never did. The plaintiff herein never had any title to the moneys in question. They were at all times, prior to the payment thereof to the defendant, the property of Haebler, and even Haebler, having defaulted in his agreement, would be in no position to demand a return thereof. But a more serious obstacle in the way of plaintiff's recovery herein lies in the fact that the decree in the foreclosure action must be held to have finally disposed of all questions litigated upon the trial of the present action, and that said judgment in foreclosure is res judicata as to the claim of plaintiff herein. In the foreclosure action the plaintiff alleged the payment of $3,000 on account of past-due principal of said bond and mortgage. The answer denied the same, thus tendering the issue with respect to such allegation. Furthermore, the complaint in the foreclosure action alleged as the amount due upon the bond and mortgage the sum of $27,000, and that said sum was, at the time of the commencement of said foreclosure action, past due. The answer denied these allegations and set up by way of defense the claim of the plaintiff herein that said moneys were paid for the purpose of extending the time of payment of said bond and mortgage, and that by the retention thereof and of the proposed agreements executed by the plaintiff herein, the time of payment of said mortgage was, in law, extended until the 8th day of January, 1919. Thus, the very questions as to whether or not the $3,000 was paid as claimed by the plaintiff herein, and as to whether the mortgage was due, were facts which were at issue and determined directly by the decision and judgment in that action adversely First Department, February, 1922. [Vol. 200 to the claims of the defendant therein. The court held distinctly that there was no agreement for the extension of the payment of said principal sum of said bond and mortgage ever executed by the plaintiff; that the time for the payment of said principal sum was never extended; and that the payment of the $3,000 aforesaid was a payment on account of said past-due bond and mortgage. Thus the court finally disposed of the contention of the defendant in that action, who is the plaintiff here. The very facts thus passed upon and determined in the foreclosure action, adversely to the contentions of the defendant therein, are the same facts upon which said defendant, as plaintiff in the present action, now claims a right to recover the moneys paid. I am, therefore, of the opinion that the decree in the foreclosure action is a bar to a recovery by the plaintiff herein, and that said decree became res judicata as to the issues involved in the case at bar. The judgment and order appealed from should be reversed, with costs, and the plaintiff's complaint should be dismissed, with costs. CLARKE, P. J., LAUGHLIN and GREENBAUM, JJ., concur; SMITH, J., dissents. SMITH, J. (dissenting): I am unable to agree with the conclusion reached by the court that the judgment in the foreclosure estops the plaintiff from making this claim. In 15 Ruling Case Law, section 455, it is said: "In order to bar a second action the circumstances of the first action must have been such that the plaintiff might have recovered for the same cause of action alleged in the second." Under the principle stated in this rule if the plaintiff in this action were unable to recover upon this cause of action in the foreclosure action, he is not estopped by the adjudication of that action of the amount due upon the mortgage. This plaintiff's defense in the foreclosure action was that the mortgage was not due by reason of an extension of time agreed upon between the parties upon the payment of $3,000 upon the mortgage. It is very clear that the claim here could not be asserted as a counterclaim in that action, nor could this plaintiff have appealed from the judgment in that action because he was not aggrieved by the judgment inasmuch as a lesser amount was found due upon the mortgage than he claimed to be due. In Cauhape v. Parke, Davis & Co. (46 Hun, 306; affd., 121 N. Y. 152) upon the trial of an action brought by the plaintiff upon a contract alleged to have been made with the defendant, the only evidence offered by the plaintiff was the judgment roll in a prior suit between the same parties, wherein the referee had found that First Department, February, 1922. App. Div. 1] such a contract was made, but had refused to grant any relief, upon the ground that he had no jurisdiction to do so. It was there held, "that the existence of this contract was not res adjudicata between the parties by reason of the finding in the previous action in such a sense as to render such former finding of fact binding upon the defendant in this suit, and that a judgment dismissing the complaint for a failure to prove the existence of the cause of action sued on should be affirmed." Mr. Justice BARTLETT, in writing for the General Term in this department in his opinion says: Before that finding could successfully be invoked against the defendants as a prior adjudication, we think it would have to appear that it constituted a decision, or the basis of a decision, from which the defendants could have appealed." T If in a foreclosure this plaintiff, there defendant, had simply asserted that the amount due upon the mortgage was $3,000 more than is claimed by the plaintiff, judgment would have been ordered on such an answer as frivolous. The right of the plaintiff to recover back the $3,000 paid was not a material issue in that action, because no relief in this plaintiff's favor could have been granted upon such an issue. In House v. Lockwood (137 N. Y. 269) the court said: Although a decree in express terms professes to affirm a particular fact, yet, if such fact were immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference to such fact." In Reynolds v. Etna Life Ins. Co. (160 N. Y. 635, 652) the court said, in speaking of a former judgment: "It is final only as to facts litigated and decided which relate to the issue, and the determination of which was necessary to the determination of that issue." In Campbell v. Consalus (25 N. Y. 613) it appeared that Consalus on a former occasion had sued for cancellation of a mortgage on the ground that it had been paid. To ascertain whether his claim of payment was well founded, the referee before whom the action was tried had taken and stated an account between Consalus and the mortgagee, and had found that a balance of $2,754.88 remained still unpaid. Accordingly, judgment was rendered dismissing the complaint. Thereafter Campbell, who in the meantime had acquired the mortgage, brought foreclosure and relied upon the former judgment as an adjudication that $2,754.88 was due from Consalus. But the Court of Appeals held otherwise, and held that the judgment was only an estoppel as to the fact that there was some amount remaining unpaid upon the mortgage, but was not an estoppel as to the amount remaining unpaid, although the matter was contested and findings made stating the amount found due upon the mortgage. In this case the question as to the purpose for which the money First Department, February, 1922. [Vol. 200 This was paid was not material to the issue there determined. This plaintiff was not required in that action to insist that the plaintiff should recover more than he claimed in his complaint. plaintiff was not liable upon the debt and was simply the owner of the equity upon which the mortgage was being foreclosed, and as to the issue here presented, that issue was not material to the issue raised by this plaintiff in that action as to whether the mortgage was then due, and the judgment, therefore, was not an estoppel against him. If the plaintiff in this action had there claimed a lesser amount due than was claimed by the plaintiff in that action, that issue would have been material. The claim of the plaintiff in this action that these moneys were not paid upon the mortgage and that a greater sum was due, did not raise a material issue. "The matter was submitted to the court for its decision and the court decided in favor of the plaintiff, and the judgment should be affirmed. Judgment and order reversed, with costs, and complaint dismissed, with costs. CROWNSHIELD TRADING CORPORATION, Appellant, v. ELLIS P. EARLE, Respondent. Partnership First Department, February 10, 1922. complaint in action at law for damages for breach of agreement to enter upon joint adventure not demurrable where there was no actual partnership not sole remedy of wronged partner. remedy at law action for accounting - A complaint states a cause of action at law for the breach of a contract to engage in a joint adventure which alleges, in substance, that the plaintiff and defendant agreed to enter upon a joint adventure to sell surplus cotton linters for the United States upon a commission, the expenses incurred by each party to be borne by such party and the profits to be shared equally, the contract with the government to be taken in the name of the defendant, and which sets forth in detail the terms of the agreement and further alleges its performance on the part of the plaintiff, but that the defendant, immediately after the contract with the government was signed, refused to allow the plaintiff to participate in handling the linters and failed to perform his part of the agreement and after receiving commissions, of which he has paid the plaintiff nothing, refused to proceed with the sale of the linters and canceled the contract with the government, and which further alleges that defendant's failure to perform damaged the plaintiff in a specified sum for which judgment is demanded. Such a complaint is not demurrable on the ground that an action at law could not be maintained until an accounting was had, as under the allegations no partnership ever existed between the parties. There was, at most, an agreement to form a partnership which the defendant refused to perform and the plaintiff seeks damages by reason of such breach. It seems, that even though the allegations of the complaint were sufficient to show that the parties had entered into a partnership agreement, and that thereafter |