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Augusta G. Genet v. The President, etc., D. & H. C. Co.

Revere Copper Co. v. Dimock, 90 N. Y. 33; Springer v. Bien, 128 N. Y. 99, 102; Shaw v. Broadbent, 129 N. Y. 114; Rose v. Hawley, 141 N. Y. 375; Converse v. Sickles, 146 N. Y. 200, 208; Genet v. D. & H. C. Co., 163 N. Y. 173. In the latter case this court said: "And although a decree in express terms professes to confirm a particular fact, yet if the stated 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." The court in that case had under consideration the judgment roll now in question, and as to it said: "It is a sufficient answer to the appellant's claim to say that neither the judgment of this court nor the order and judgment entered thereon in the court below dismissed the complaint on the merits.” And then, after quoting section 1209 of the Code of Civil Procedure and referring to the codifiers' note relating thereto, continued: "As this judgment would not have been conclusive between the parties in a new suit brought for the same cause of action, a fortiori, it cannot be conclusive in litigation as to other causes of action." That decision, therefore, seems to be a binding adjudication upon this court as to that question, cutting off the right of counsel to have it again considered by the court (Towle v. Forney, 14 N. Y. 423).

But if it were an open question the statute would require us to reach the conclusion then expressed, for it provides, in effect, that the dismissal of the complaint, either before or after a trial, shall not have the effect of preventing a new action for the same cause of action, unless it (the judgment) expressly declares or it appears by the judgment roll that it is rendered upon the merits." Now, the judgment entered upon the dismissal of the complaint in that action, pursuant to the decision of this court, does not expressly declare that such judgment was

Augusta G. Genet v. The President, etc., D. & H. C. Co.

rendered upon the merits, and unless it otherwise appears in the judgment roll it follows that the court is prohibited by the statute from holding that it was rendered upon the merits. The judgment was, of course, rendered by the Special Term in pursuance of the remittitur sent down by this court, and it did not declare that the decision was upon the merits; but if it appeared in the remittitur that the decision was rendered upon the merits, the requirements of the Code would be satisfied, for then the fact would necessarily appear by the judgment roll, of which the remittitur forms a part.

It quite often happens at the Special Term, through the omission of counsel to request the court to incorporate into the order that the complaint was dismissed upon the merits, or the neglect of the court to direct, of its own motion, the insertion of such a provision in the order, that a plaintiff is not cut off from bringing a new action, although the basis of the court's determination was that the action could not be maintained and it intended to make a final disposition of it. The defendant afterwards finds himself in such a case unable to invoke the judgment entered on the dismissal as a bar to an action and prevented from proving it as conclusive evidence against the plaintiff.

The courts might perhaps conclude to take other proof of the fact were it not that the Legislature in its wisdom has seen fit to provide a clear cut method by which the fact of the dismissal upon the merits may be established in a very simple way, namely, by expressly stating it in the judgment or causing the fact to appear in the judg ment roll; as, for instance, in the order dismissing the complaint upon which the judgment of dismissal is finally entered. That section applies to dismissals either before or after trial, and hence is applicable to decisions made by

Augusta G. Genet v. The President, etc., D. & H. C. Co.

the appellate courts as well as the trial court. No reason for a different rule in the appellate courts has suggested itself, but if there were one the courts could not make practical use of it for the reason that the statute imperatively prohibits the courts from treating a judgment entered upon the dismissal of the complaint as preventing a new action as to the same subject-matter unless the final judgment was rendered upon the merits, and strictly limits the courts in the search for evidence, as to the fact of declarations to that effect, to the judgment or the judg ment roll, the purpose undoubtedly being to have the disposition of the question rested upon absolute certainty and not upon speculation which might occasionally result from an exploration of the judgment roll, drawing the inference from certain facts found therein that the trial court or the appellate court, as the case may be, intended that the first action should be dismissed on the merits.

The suggestion is made that section 1209 could be so construed as to require it to be expressly stated in the judgment that it was rendered upon the merits, but if the judgment (in which we look for the whole determination) is silent on the subject, then we may draw the inference, for instance, from statements in the order upon which the judgment is to rest, that the determination was upon the merits. In other words, it is suggested that the section requires an express declaration to appear in the judgment, which is the final repository of the rights of the parties as to matters involved in the action, in order to prevent a new action, but a statement of lesser value will suffice when it is found to be in the original order of dismissal, or other amendatory order, if there should happen to be It cannot readily be conceived that such a result could have been intended by the Legislature, and, if it were, apt language for its accomplishment was not chosen,

one.

Augusta G. Genet v. The President, etc., D. & H. C. Co.

but directly the contrary, as it seems to us, for it has named the judgment as the more natural and appropriate place to assert finality between the parties as to matters in controversy, and required that it should be expressly declared therein that it was rendered upon the merits; but if such an express declaration be omitted from the judgment, then that it will suffice if it appear elsewhere in the judgment roll. If the construction we have given the section be not the only one of which it is capable, it is certainly a more reasonable one and one that is in full harmony with the spirit of the section, and at the same time seems to be in accord with the letter.

The appellant further contends that the fourth finding, in which the court found, in effect, that the plaintiff, with full knowledge of the conduct of the defendants, had waived the right to terminate the contract by accepting royalties accruing thereunder and by bringing actions against the defendants in affirmance thereof, was error, in that the actions brought by the plaintiff were not in affirmance of the contract, while the royalties were accepted with the distinct understanding that it was without waiver or prejudice of any of the rights of plaintiff as appeared by the testimony of the plaintiff, which is further supported by the receipts for mining rents, each one of which, after acknowledging the receipt of the money, stated that it was "without waiver or prejudice," in which form it was accepted by the defendants. The view has been taken so far that these words in the receipts have no special legal significance, which, under the surrounding circumstances disclosed by this record, may well be questioned. Those words in the legal profession and among business men have a distinct and certain meaning like other business phrases, such as C. O. D. and F. O. B. In such cases the meaning of the letters is perfectly well understood,

Augusta G. Genet v. The President, etc., D. & H. C. Co.

and in business full force and effect will be given to them because they are thoroughly comprehended by all business men. So, too, the words " without waiver or prejudice" have in the legal profession and among business men a well understood value. They import into any writing in which they appear that the parties have agreed that as between themselves the receipt of the money by one and its payment by the other shall not, because of the facts of the receipt and payment, have any legal effect upon the rights of the parties in the premises; that such rights will be as open to settlement by negotiation or legal controversy as if the money had not been turned over by the one to the other. The contention that the phrase is meaningless, because it does not point out in terms the subject to which it relates, is without force if the phrase has by common consent come to mean what I have asserted, namely, that each and every one of the rights of the parties in the subject-matter out of which the payment grows is not to be affected in anywise by the payment of the money and its receipt. During all the time that these receipts were given there was existing litigation between the parties growing out of questions connected with the mining of coal upon the plaintiff's lands, the right to do which the defendants claim they have secured by contract, litigation which the plaintiff was pressing against the defendants, and it would seem as if it could not have been otherwise than perfectly understood between the parties, even in the absence of other testimony, that the plaintiff and defendants both appreciated that the object of inserting these words in the receipt was to protect, not a particular interest, for then it would have been specified, but all interests which plaintiff had under her contract with the defendants; to preserve the right to enforce them in any manner whatever, which, in the absence of an under

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