The history of the litigation between these parties is fully detailed in the opinion of the learned judge at Trial Term,* and we might *259well be content to rest our decision upon the reasons therein given in favor of the judgment which was thereafter entered, and from which the plaintiff appeals. It was thought proper, however, that we should add a word in reference to a single feature of the litigation which we think strengthens the conclusion reached. The precise point upon which the complaint was dismissed was that the former judgment was res adjudioata.
There were two judgments heretofore rendered against the plaintiff on demurrers to complaints. The facts, the questions involved and the scope of the judgment in the first action fully appear in our decision in Hirshbach v. Ketchum (5 App. Div. 324). It was therein held that the contract sued upon was obnoxious to section 74 of the Code of Civil Procedure because presumably made between a layman and a lawyer, and that if it were the intention of the plaintiff to avail himself of the exception in that section which renders valid such an agreement when made between attorneys, the *260burden rested upon him to show by suitable allegations in the com* plaint that the agreement was within the exception. We did not hold that such a contract was inherently bad or malum, in se, but only that it was one forbidden by statute, and there was a clear intimation in the opinion that had it appeared that the plaintiff was a lawyer who had entered into the agreement with the defendant as another lawyer a different conclusion might have been reached.
The Court of Appeals in Irwin v. Curie (171 N. Y. 409) has expressly overruled the decision in Hirshbach v. Ketchum (supra), and were the question now before us we would necessarily, follow that authority and hold that the contract sued upon was not invalid. Before its rendition, however, and after the decision of this court in Hirshbach v. Ketchum (supra), the plaintiff, pursuant to the leave granted, amended the complaint and alleged that the contract was made in 1886, when the plaintiff was an attorney. . The present com*261plaint alleges in addition that at that time he was admitted in Illinois, and that thereafter in 1889 he was admitted to practice as an attorney in the courts of the State of Hew York and the United States courts. To the amended complaint a demurrer was interposed and sustained, and it was therein finally adjudged that the complaint should be dismissed upon the merits. From this judgment the plaintiff did not appeal. He allowed the matter to rest for some years until after the decision of the Court of Appeals in Irwin v. Curie (supra), when finding the law settled in his favor, he attempted by motion and by this action to get away from or to overdo the force and effect of the judgment dismissing his complaint, which, by reason of his failure to appeal, had become final and conclusive against him.
It was insisted in the court below, ás it is in this court, that the present action is different from the one in which the judgment was entered. Although it is for other and different moneys, the right to recover them is based upon the same contract, and, as correctly said by the learned judge at Trial Term, “It is true that the present complaint differs somewhat in form and construction from that in the former action, but in every essential particular it is the same and the contract relied upon is identical.”
Upon examining the precise questions involved, therefore, and the scope of the former judgment which is pleaded as a bar, we find that, although the complaint herein alleges that the contract was made between the plaintiff and the defendant, both of whom were attorneys, it was adjudged in the former action that the contract between such attorneys, which was relied upon in that action, was void and unenforcible. We are unable, therefore, to find — any more than was the learned judge at Trial Term — an avenue of escape from the conclusion that the former judgment was binding between the same parties upon the same contract, and that as such the final judgment rendered in that action is a bar to the maintenance of this action.
It follows that the judgment appealed from should be affirmed, with costs.
Patterson, Hatch and Lahghlin, JJ., concurred.
Judgment affirmed, with costs.