to exist as a separate corporation, and that the complaint did not state any matter of fact showing a revivor of the suit against the consolidated company, or any facts which rendered such a revivor unnecessary; that the following allegations contained in the declarations in this case, and which were not contained in the complaint in the prior case, fully supply all the facts for the want of which the demurrer was so sustained by the judge of the county circuit court, and in the de'ence of which he, the said judge, held that the suit had abated by the consolidation.

But the record shows that the plaintiff Evansville and Illinois Railroad Company, in that case declined to amend his decla- on the taking place of the alleged consolition, and that the court rendered judg- dation, as set forth in the complaint ceased ment for the defendants. An appeal was prayed by the plaintiff, but it does not appear that the appeal, if it was allowed, was ever prosecuted, and the present defendants aver, in their plea in bar, that the matters and things set forth in the declaration in that case are the same matters and things as those set forth in the declaration in the present suit, and that the plaintiff impleaded the defendants in that suit, in a court of competent jurisdiction, upon the same cause of action, disclosing the same ground of claim, and alleging the same facts to sustain the same, as are described and alleged in the present declaration, and that the court had jurisdiction of the parties and sub- in the replication of the plaintiff, are the ject matter, and rendered a final judgment upon the merits in favor of the defendants and against the plaintiff, and that the judgment remains unreversed and in full

force.

Matters omitted in the former declaration and supplied in the present, as alleged

following: (1) That the two companies, on the eighteenth of November, 1852, by virtue of the act to incorporate the Wabash Railroad Company, consolidated their charters and united into one company Plaintiff demurred to the plea and the under the name and style of the Evansdefendants joined in the demurrer and ville and Illinois Railroad Company, and the cause was continued. During the that the consolidated company under that vacation the original plaintiff deceased, name continued to appear to and defend and it was ordered that the cause be the said action in the said Supreme Court. revived in the name of the executrix of (2) That the Legislature of the State of his last will and testament. Both parties Indiana subsequently enacted that the subsequently appeared and were heard, corporate name of the consolidated comand the court, consisting of the Circuit pany should be changed, and that the and District Judges, overruled the de- same should be called and known by the murrer to the plea in bar and decided name of the Evansville and Crawfordsthat the plea is a good bar to the action. ville Railroad Company, by which name Instead of amending the declaration the defendants have ever since and now pursuant to the leave granted, the plain- are known and called. (3) That the act tiff filed a replication to the plea in bar, to of the legislature changing the name of the effect following, that the decision of the consolidated company was subsethe county circuit court of the state was quently duly and fully accepted by the not a decision and judgment on the directors of the company, and that the merits of the case, but, on the contrary company became and was liable for all thereof, the judgment of that court only decided that the complaint or declaration did not state facts sufficient to sustain the action, in this, that according to the allegations of the complaint, the original

acts done by the two companies and each of them. (4) That the consolidated company appeared and defended the said action in the Supreme Court of the State of New York by the name of the Evansville

and Illinois Railroad Company, and con- ties in the suit decided in the County tinued to defend the same until final Circuit Court. Where the parties and judgment was rendered in the case. (5) the cause of action are the same, the That it did not in any manner appear in prima facie presumption is that the questhe former suit that the act of the legisla- tions presented for decision were the same ture changing the name of the consoli- unless it appears that the merits of the dated company ever went into force by its controversy were not involved in the isacceptance, or that the consolidated com- sue, the rule in such a case being, that pany had thereby and by the acceptance where every objection urged in the second of said act become liable for all acts done suit was open to the party, within the by the said two companies before the con- legitimate scope of the pleadings, in the solidation, as is provided in the second first suit, and might have been presented section of said legislative act. Wherefore in that trial, the matter must be considthe plaintiff says that the decision in that case was not in any manner a decision upon its merits, nor in any manner a bar

to this action.

Responsive to the replication the defendants filed a special demurrer and showed the following causes: (1) That the reply is insufficient in law to enable the plaintiff to have and maintain her action. (2) That the reply does not state facts sufficient to constitute a defence to the defendants' plea. (3) That the reply does not state facts sufficient to constitute a good reply nor to avoid the defendants' plea.

Hearing was had and the court sustained the demurrer to the replication and rendered judgment for the defendants, and the plaintiff sued out the present writ of

error.

ered as having passed in rem judicatum, and the former judgment in such a case is conclusive between the parties.

3. That a judgment rendered upon demurrer to the declaration, or to a material pleading, setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be, since the matters in controversy are established in the former case, as well as in the latter, by matter of record, and the rule is that facts thus established can never after be contested between the same parties or those in privity with them, and that if judgment is rendered for the defendant on demurrer to the declaration, or to a material pleading in chief, the plaintiff can never after maintain, against the same defendants or his privies, any similar or concurrent action for the same cause, upon the same grounds as were disclosed in the first declaration, for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless.

Held, 1. Technical estoppels must be pleaded with great strictness, but when a former judgment is set up in bar to a pending action, or as having determined the entire merits of the controversy involved in the second suit, it is not required to be pleaded with any greater strictness than any other plea in bar, or any plea in avoidance of the matters al-in his first action, from the omission of an

leged in the antecedent pleading.

That if the plaintiff fail on demurrer

essential allegation in his declaration 2. It is clear that the parties in the which is fully supplied in the second suit, present suit are the same as the parties in the judgment in the first suit is no bar the former suit, and it can not be success- to the second, although the respective acfully denied that the cause of action in tions were instituted to enforce the same the pending suit is identical with that right, for the reason that the merits of the which was in issue between the same par-cause, as disclosed in the second declara

That a married woman may make purchases of property formerly belonging to her husband, and she may make it through the intervention of her husband as her agent, &c., and she may conduct business by reason of the agency of her husband and without personally participating in its management.

That the sale to L. was in no way fraudulent.

That a referee cannot be required to find a particular fact unless it is proven by uncontradicted testimony.

This was an action for conversion. The defendants are the assignees in Bankruptcy of one C., and plaintiff is C.'s wife. The defendants insist that the property alleged to be converted was the property of the bankrupt C. It seems that in 1866, C. being in failing circumstances sold, or pretended to sell, to one G. certain person- That the defendants precluded themal property. and shortly after went into selves from objecting that a previous nobankruptcy. G. then transferred this tice of 20 days, as required by the Bankproperty to plaintiff, and in 1868 C. got his discharge in bankruptcy, went into business, and in November, 1871, he went into bankruptcy again; prior to this he transferred all his property to one L. Both these transfers were for value. L. subsequently transferred to plaintiff. After the transfer to L. the property remained in C.'s possession.

rupt Act (1 R. S. U. S. §§ 982 and 5,056),
was not given to them by retaining the
property instead of tendering amends, and
they also waived it by going to trial upon
the merits.

Judgment affirmed.
Opinion by Gilbert, J.

uary and until May at the rate of $1,200, which was received under protest.

Plaintiff read in evidence a resolution by the Common Council, authorizing the justices of the District Court to appoint a

N. Y. SUPREME COURT, GENERAL TERM. janitor and fixing the salary at $1,500 per

FIRST DEPARTMENT.

James McCullough, respt., v. The Mayor, Aldermen, &c., of New York, applt. Decided March 6, 1876.

The Justices of the District Courts,

under the resolution of the Common Council, approved Mar. 16, 1870, are authorized and empowered to ap. point janitors for the District Courts. The provision of the charter, Chapter 335 laws, of 1873, sec. 97, with reference to the Board of Apportionment fixing the salaries of, applies to public officials, not to mere servants or employees.

Action to recover alleged balance due to plaintiff of $625 for labor as janitor of the Second District Court, it being compensation fixed by the Common Council,

at the rate of $1,500 a year, for the months from June to October inclusive in the year 1875.

annum, payable monthly- Also plaintiff's appointment by letter by one of the justices of the District Couit.

Defendant put in evidence a resolution of the Court of Apportionment reducing the salaries of janitors of the Civil District Courts to $1,200 per annum, passed Dec. 13, 1873, to take effect Jan. 1st, 1874.

Defendant then moved to dismiss the

complaint, on the ground:

1. That the justice had no right to appoint the plaintiff janitor.

2. That the Common Council were not authorized to delegate the power of appointment to the justices.

3. That under the charter the Commis

sioner of Public Works had sole and exclusive power of employing janitors.

The judge directed a verdict for plaintiff for amount claimed-$655.55, and directed the exceptions to be heard in the first instance at the General Term.

Elliott Sanford, for respt.
W. C. Whitney, corp. counsel.

Held, By Sec. 65, Chap. 334 laws of
1857, it was enacted that the corporation
of the City of New York shall furnish, at
the expense of the city, all necessary at-
tendance, fuel, lights, and furniture for
the District Courts. By resolution of the
Common Council, approved March 16,
1870, the
the Justices of the District

Answer set up that plaintiff was never employed by the Commissioner of Public Works, who had the sole and exclusive power to appoint janitors of the District Courts; and for a second defense that plaintiff's salary had been fixed by the Board of Estimate and Apportionment, pursuant to the powers conferred upon them by Chapter 335, laws of 1873, at $1,200 per annum, and that plaintiff was entitled to recover compensation at the rate of $1,200 per annum, and no more. On the trial it appeared that plaintiff Courts were empowered to appoint a janiwas employed by the judge of the District tor at the annual salary of $1500 a year Court; that his work was to keep the payable monthly. That the point that the rooms clean, make fires and go on errands Common Council could not delegate the for the justice, and take care of the prop- power of appointment to the Justice of erty of the Court. That plaintiff had the District Court, is not well taken. The been paid for his services to June 1st, janitor, being but a mere employee or ser1875, at the rate of $1,500 a year, for Jan-vant and not a public officer, the duty im

posed by the Legislature on the corporation in respect to his employment was executive and ministerial, and could we think he exercised as well through the authority given to the civil justice as by a direct employment by the Common Coun

cil itself.

The objection that, under the charter, the Commissioner of Public Works had the sole, exclusive power of employing janitors, is disposed of by the case of Bergen vs. the Mayor. 12 N. Y. S. C. R., 243.

relations, rather than that she claims control or possession.

This action was brought to recover damages for breaking and entering a dwelling-house in which plaintiff, his wife, and family resided, and for trespasses alleged to have been committed by defendants while in the house. It appeared in evidence that the house was upon a farm of which plaintiff's wife owned the fee simple, that plaintiff built the house, and had lived there with his wife and children for six years. He testified without objection that during that time he had been in possession of the house and had control of it. It further appeared that he had operated the farm in his own name, owned the stock upon it, cultivated and provided for his family. The judge instructed the jury that plaintiff was not entitled to maintain an action against the defendants for breaking and entering the house, but

As the plaintiff was in no sense a public officer but a mere servant or employe, the provision of the charter, Chap. 335 of 1873, Sec. 97, with reference to the Board of Apportionment fixing the salaries does not apply. That provision applies and was intended to apply, to the public officials of the city coming within its description, and does not extend to mere employees or servants, (47 How., 491.) The permitted the case to go to the jury for Common Council could of course dis- the other damages proved. charge him altogether, and abolish the place or confer its duties upon any other servant or employee. Plaintiff is entitled to the compensation fixed by the resolution.

H. G. Hotchkiss for respt.
O. W. Chapman for applt.

Held, error: That from the facts proved the jury might have inferred that plainMotion for new trial denied, and judg- tiff's wife had put him in possession of ment ordered for the plaintiff upon the the farm, and consented to his building verdict. upon, occupying and controlling it, in his Opinion by Davis, P. J.; Brady and own name and on his own account, for Daniels, J. J., concurring.

TRESPASS.

N. Y. COURT OF APPEALS. Alexander, respt. v. Hard, et al., applts. Decided February 22, 1876. A husband who, with his wife, resides in a house built by him, upon his wife's land, the house and land being under his control, may maintain trespass for breaking and entering the house. Under such circumstances, the presumption is rather that the wife is residing in the house by reason of her marital

the support of himself and his family; that this would be a sufficient possession to entitle him to maintain an action against a trespasser for breaking and entering the house.

Also Held, That it was more reasonable, under the facts proved, to attribute the presence of the plaintiff's wife in the house to a compliance with her marital obligations than to an intention to retain possession of the property.

Order of General Term, granting a new trial, affirmed.

Opinion by Rapallo, J.