This action, commenced in 1887, was for the specific performance of an alleged oral agreement, made in 1880, to convey a house and lot in the village of Holley. Two questions of estoppel by judgment arise in the case, one claimed by the plaintiff, the other by the defendant. In July, 1883, the plaintiff brought an action against the defendant, on account, for board, services, money lent, and other charges, extending over a series of years, and amounting to more than $5,000. She gave credit to the defendant for money paid from time to time to the amount of nearly $3,000. She máde no mention of any agreement concerning the house and lot in question,, and gave no credit for the purchase price or value of that property. The action was commenced by attachment, which was levied upon certain personal property of the defendant, and upon the house and lot in question. The defendant moved, successfully, to vacate the attachment, and in September, 1883, brought an action against the plaintiff, Mrs. Shaw, and her surety in the undertaking given on procuring the attachment, for the indemnity secured thereby, alleging damages sustained by him by reason of the cloud on the title of the real estate attached, and a consequent loss of sale and depreciation in the value of the property. The answer of the defendant, Mrs. Shaw, averred that the real estate mentioned in the complaint was purchased for her by the plaintiff, Broadbent, (defendant in this action,) under an agreement with her, set out in her answer, which was the same agreement as that alleged in her complaint in this action, viz., an agreement by which title to the house and lot in question was to be assured to the plaintiff herein, and credit for the-price and value thereof was to be given to the defendant herein, on the account she had against him; and, in her answer in that action, the defendant, (plaintiff here,) by way of counter-claim, demanded judgment for the same specific performance of such agreement which she demands by her complaint in this action. Issue was joined on the counter-claim by a reply, and that issue, with the others in the action, was tried in February, 1884, by the court, a jury being waived. On the trial, evidence was offered by the defendant, Shaw, in support of her counter-claim, but it was excluded by the court on the ground, specifically stated and entered on the record, viz., that by bringing her action on account against Broadbent, and giving him no credit for the price or value of the house and, lot, but alleging and verifying that the whole of such account was due to her after crediting only the payments of cash allowed in her.complaint, she had waived performance of the alleged agreement of Broadbent, and elected to sue him for the whole sum of money due to her, which included what, according to the averments of her answer, was the consideration for such agreement. The court thereupon found that none of the averments of the answer were sustained, and directed judgment for the plaintiff for an amount of damages assessed. Judgment was entered accordingly, in February, 1884, from which no appeal was ever taken, and it stands at present as the judgment of this court. That judgment was pleaded by the defendant herein as a bar to this action, but the plea was overruled by the court at special term. The second judgment, upon which a question of estoppel arises in this action, was that which was finally entered in the action on account. After the entry of the judgment in the action on the undertaking, Mrs. Shaw, as plaintiff in the action on account, applied to the court for leave to amend her complaint in that action so far as to give credit to the defendant for the price and value of the house and lot, although she had in the mean time given testimony on the trial of that action, before the referee, on both direct and cross examination, in support of her account as presented by her complaint, without mention of the credit which was now proposed to be given. The application was opposed by the defendant, but it was granted with the proviso that such amendment should not in any way impair the effect upon the rights of the parties of the decision and adjudication made in the action on the undertaking. Thereupon an amended *295complaint was served, which set up the alleged agreement for the transfer of the house and lot, and gave the defendant credit for the additional sum of $1,200, as the price and value of that property. The trial proceeded before the referee, and the plaintiff was permitted, under the objection of the defendant, to give evidence tending to establish the alleged agreement. The report of the referee contained a finding to the effect that the alleged agreement was made substantially as set out in the amended complaint, and that a credit was due to the defendant accordingly. Other findings reduced the amount of the plaintiff’s charges to a sum less than the total of the credits allowed by the complaint, and judgment was directed in favor of the defendant, dismissing the complaint with costs. The defendant entered judgment accordingly. The court at special term, in this action, held, in effect, that the existence of the agreement in question was res adjudicata by the judgment last described, and that the defendant was estopped thereby to deny it; and, without other evidence of the facts, found the agreement established, and that the plaintiff had performed on her part, and gave judgment to the plaintiff for the relief demanded in her complaint.
We think the court below erred in respect to the effect to be given to both of the judgments in evidence in this action.
1. The judgment last described did not conclude the defendant as to the fact of the agreement in question for several reasons: First. Because that fact was not in issue in that action. The action was on an account. The complaint set out many items of alleged indebtedness, and admitted certain items of credit. The defendant was not called upon to admit or deny any of those credits. They were established by the admission of the complaint, and the source from which they sprung, or the facts upon which they were based, or the reasons for which they were admitted, were immaterial, and not issuable facts in the action. For that reason the general denial of the answer (except as thereinafter admitted) did not raise an issue upon any allegations of the character referred to. All the evidence offered by the plaintiff to substantiate those allegations of her amended complaint was objected to by the defendant as immaterial, and it is not apparent why the ruling by which it was at first excluded was not adhered to. It was clearly immaterial as not relating to any issue in the action. The statement by counsel for the plaintiff as to the object of the evidence, which seems to have induced the change in the ruling of the referee, is unintelligible as it is given in the record; but no statement of counsel could have changed the nature of the issues in the action, or made evidence admissible which related only to a non-issuable allegation of the complaint. Second. The finding in the former action did not conclude the defendant in this action, because, though the finding was adverse to him, he could not procure it to be reviewed on appeal, because the judgment was in his favor, and there was nothing from which he could appeal. Canhape v. Parke, 46 Hun, 306.
2. On the other hand, we are unable to see why the judgment in the action on the attachment undertaking was not a prior adjudication of the issues in this action, and why the defendant’s plea in bar ought not to have been sustained. The answer in that action contained substantially the same averments in respect to the agreement in question and its part performance as the complaint in this action, and the affirmative relief asked for in that answer is the same as in this complaint, viz., judgment for the specific performance of such agreement by the execution and delivery of a proper conveyance of the premises in question. Issue was joined upon this counter-claim by a reply, and the issue was tried, so far as that evidence was offered, in support of the allegations of the answer in that regard, and was excluded by a ruling which involved the merits of the defendant’s cause of action and counterclaim. It is no answer to the plea in bar to say that the counter-claim was one which could not properly have been pleaded in the action on the under*296taking. It was well pleaded unless it was objected to. The facts alleged as constituting, the counter-claim did make out a cause of action which it •was competent for the parties to try in that action if all consented to do so; and there is nothing in the record to show that any objection was made. There was no demurrer to the answer, and the evidence offered in support of it was not objected to on the ground that the defense or counter-claim was not properly interposed in that action, but on the ground that the record evidence in the case showed that it had been previously waived and relinquished by the defendant. In point of fact, the defendant’s counter-claim was tried in that action without objection, and it was held that she could not recover thereupon because she had elected another remedy in a previous action, which, as the court held, involved the waiver and abandonment of her right to enforce the agreement upon which that cause of action was based. We see no respect in which this falls short of being a prior adjudication of the same issues as those presented by the plaintiff here. It was between the same parties, and must be a bar to the present action. Upon both or either of the grounds considered we think this judgment must be reversed, and a new trial granted.
Judgment reversed, and new trial granted, with costs to appellant, to abide the final award of costs. All concur.