as relevant to the issue, but it was not necessary to its determination, any more than if he took the witness stand and denied any or all of the acts alleged to have composed the crime. For instance, if he testified that he took property from the person of Gelber, but did not use force or violence, or fear, and the jury believed him, they could have convicted him of larceny, but they would have had to find him not guilty on the charge of robbery. This testimony, like that relating to the alibi, would not have been necessary to the determination of the issue, but would have been competent as relative to the issue. Had the defendant been found guilty, it would have been an adjudication that all the necessary component facts of the crime had been proven beyond a reasonable doubt, and consequently would have been a bar to prosecution for the same crime. It does not follow, however, that a verdict of not guilty was an adjudication upon any or all matters set up as defense for the reason stated that such matters were not necessary to the determination of the main question of fact-was the defendant guilty? A confusion of terms in defendant's reasoning leads irresistibly to a confounding of identity of issue with identity of person whereas they are distinct and separate. One is inclusive of all things necessary to a conviction; the other is exclusive of all things but personality. The proposition advanced is that, because defendant was found not guilty on the trial of an indictment charging him with robbery from Alexander Gelber, he cannot be found guilty of an attempt to commit robbery from Samuel Gelber at the same time and place. Here were two distinct crimes charged to have been respectively committed upon two individuals, and the mere fact that the robbery was alleged and the attempt to commit robbery was proved to have occurred at the same time and place did not merge the two crimes, but each maintained its distinctive character and requirements of proof of guilt. There was on the trial of each indictment an issue to be determined distinct from that to be determined in the other indictment, and neither determination depended exclusively upon the evidential force necessary to support the other. Consequently there could not be identity of issue, and the judgment on one indictment cannot be invoked as a bar to the judgment on the other. In Black on Judgments the learned author states that: "A judgment is conclusive by way of estoppel only as to facts without the existence and proof or admission of which it could not have been rendered. In other words, it is conclusive evidence of whatever it was necessary for the jury to have found in order to warrant the verdict in the former action, and no further." 2 Black, Judg. § 615. In Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823, it was held that: "A judgment is conclusive in a second action only when the same question was at issue in a former suit, and that the conclusive character of * a judgment extends only to the precise issues which were tried in the former action, and the party seeking to avail himself of a former judgment must show affirmatively that the question involved in the second action was material and actually determined in the former, as a former judgment will not operate as an estoppel as to immaterial or unessential facts, even though put in issue and directly decided." This case is the controlling authority in this state and harmonizes in principle with Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733, which is regarded as the leading case on the subject. As interesting as it is dangerous is the brief of the learned counsel for the defendant-dangerous in that if the premise that the defense of alibi was an essential issue, and was therefore passed upon by the jury be conceded, the conclusion that it is res judicata is irresistible; but, as it has already been pointed out, the premise is fallacious, since the alibi was not an essential issue, and therefore, even if passed upon by the jury, could not have been determinative of the issue. Of the numerous authorities cited on the defendant's brief, one will be noted as illustrative of erroneous deduction: "A test which is of almost universal application is whether the facts required to support the second indictment would have been sufficient if proved to have procured a conviction under the first indictment. If they would be, the offenses are identical." 17 Am. & Eng. Ency. of Law (2d Ed.) 597. To commit robbery of one man as laid in the second indictment would not have been sufficient to convict of robbery of another man as laid in the first indictment. On the facts and the law applicable thereto I rule on the first ground of motion that the defendant was not in the Court of General Sessions tried and acquitted on an indictment charging the same offense as that tried in the Supreme Court, and on the second ground that the facts determined in his favor on that trial were not identical with the facts on which he was convicted on this trial, and therefore were not res judicata. Motion in arrest of judgment denied. Motion denied. (102 Misc. Rep. 561) BIGIO et al. v. ZRIKE et al. (Supreme Court, Special Term, New York County. February, 1918.) 1. DISCOVERY 74-MARKING BOOK OR DOCUMENT FOR IDENTIFICATION— INSPECTION. Any book or document produced under a subpœna duces tecum upon the examination before trial of defendants, composing a partnership, may be marked for identification, but may not for this reason be inspected. 2. DISCOVERY 74-EXAMINATION BEFORE TRIAL-INSPECTION OF BOOK OR DOCUMENT. If upon examination before trial a witness refreshes his recollection by the use of a book or document, it may then be inspected by counsel as to the portion used by the witness, and the witness may be further examined as to it after inspection, and such part may be marked in evidence. 3. DISCOVERY 74, 79-EXAMINATION BEFORE TRIAL-INSPECTION OF BOOK OR DOCUMENT. In such case, if it appears from the witness' testimony that an entry in his handwriting was a true statement of the facts when it was made, but that after inspection the witness has no recollection of the facts, the entry may be inspected and the witness examined thereon, and it may be introduced as an extension of his testimony. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. DISCOVERY 74-EXAMINATION BEFORE TRIAL-BOOK OR DOCUMENT. On an examination of defendant before trial, he may be asked to state the date of the first and last entries in a book to fix a period that it covers, provided he has used any part of the book to refresh his recollection. Action by Jacques Bigio and Albert Bigio, copartners doing business under the firm name and style of Bigio Frères, against Salim Zrike and others, copartners doing business under the firm name and style of Zrike Bros. Referee's request for instructions as to certified questions answered. Ferris, Dannenberg & Ansbacher, of New York City, for plaintiffs. Leo Oppenheimer, of New York City, for defendants. FINCH, J. [1] Upon an examination before trial of defendants, composing a copartnership, proceeding before a referee, the latter has certified certain questions to the court in accordance with the provisions of the Code, and asks that the court issue its direction as to whether the questions should be answered by the defendants, and asking for instructions as to procedure in connection with the marking for identification and introduction in evidence of certain books and documents. In answer to the request for instructions, any book or document produced before the referee by means of a subpœna duces tecum may be marked for identification, but may not for this reason be inspected. [2] If upon examination of the witness he refreshes his recollection by the use of any such book or document, this book or document may then be inspected by counsel as to the portion so used by the witness to refresh his recollection, and the witness may be further examined regarding the same, after such inspection, by the counsel, and such portion may be marked in evidence. [3] If it appears from the testimony of the witness that an entry is in his handwriting, and was a true statement of the facts at the time that it was made, but that the witness, even after inspecting the same, cannot refresh his recollection and has no recollection of the facts, still the entry, upon the above facts having been shown, may be inspected by the counsel and the witness may be examined concerning the entry, and such entry may be introduced in evidence as an extension of the testimony of the witness. The above answers the instructions asked for, and renders unnecessary further comment in regard to such request for instructions. [4] In regard to the questions certified, the defendant may be asked to state the date of the first entry and the date of the last entry in a book, for the purpose of fixing the period that the book covers, provided that such defendant has used any portion of the book for the purpose of refreshing his recollection. The defendant examined should answer the question: "From whom did you purchase the merchandise set forth in those bills, which you shipped to Bigio Bros?" Settle order on notice. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes SPURDIS v. KARADONTES. (Supreme Court, Appellate Term, First Department. March 22, 1918.) 1. ELECTION OF REMEDIES 9-ABANDONMENT-SUIT ON COVENANT. Where plaintiff sued upon covenant of quiet enjoyment, it must be held that he affirmed the lease, although the action was abandoned. 2. FRAUD 35-ACTION-DISAFFIRMANCE OF LEASE-NECESSITY. Although bringing suit on covenant of quiet enjoyment was an affirmance of lease, lessee did not, by bringing such suit, waive his right to recover damages for fraudulent representations of lessor that rent had been paid for a certain month. Lessee, who, by suing on covenant of quiet enjoyment, affirmed lease, was entitled to recover the difference in value of the lease as it was and what it would have been if misrepresentations of lessor had been true. Appeal from Municipal Court, Borough of Manhattan, First District. Action by Nick Spurdis against Peter Karadontes. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to reduce judgment, in which case judgment, as modified, will be affirmed. Argued November term, 1918, before LEHMAN, WEEKS, and FINCH, JJ. Harry N. Selvage, of New York City, for appellant. FINCH, J. The defendant was engaged in business as a florist in partnership with one Zacharakas, occupying a store for which the defendant had a lease at $175 rental a month. On December 4, 1915, the defendant leased one-half of the store to the plaintiff through the plaintiff's brother, acting as the plaintiff's agent, at a monthly rental of $87.50, which lease was to run until September, 1916, the plaintiff to have the month of December free of any rent. At the time of the making of the lease the plaintiff paid the defendant the sum of $350 for the purchase of the lease, with the month of December rent free. Shortly after the plaintiff entered upon the leased premises, and in the month of December, Zacharakas, the occupant of the other half of the store, informed the plaintiff that he intended to discontinue the florist business and go into the shoe-cleaning business at the same location, to which plaintiff demurred, as not being a suitable business to be carried on in the same store with the plaintiff's business, which was that of selling fruits. When the plaintiff took the matter up with the defendant, it was suggested that a new lease be drawn, limiting the use of the portion of the store not occupied by the plaintiff to the florist business, and the plaintiff, the defendant, and Żacharakas went to a lawyer to have a new lease drawn. They were taken to this lawyer by one Penagakos, who had negotiated the transaction and brought the parties together. Upon Penagakos explaining to the lawyer what was desired, the lawyer declared the proposed transaction to be a swindle, and refused to have anything to do with it. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Thereupon another lawyer drew up a new lease to take the place of the former lease. Plaintiff's brother is a Greek, unable to read English, and not understanding it very well, and he depended upon the statements of the defendant and Penagakos as to the contents and the meaning of the lease. About two days after the executing of this new lease the florist stock was removed from half of the store and the plaintiff was left in sole possession of the whole store. On the 30th of December, 1915, the plaintiff was served with papers which were addressed to the defendant. These papers were in a dispossess proceeding for nonpayment of rent for December. The plaintiff then also discovered that the lease as redrawn covered the entire store at a monthly rental of $175, and ran to the plaintiff and Zacharakas as joint lessees. The plaintiff vacated the premises January 1st, and on January 14th brought an action against the defendant for breach of the covenant of quiet enjoyment contained in the lease. This action was discontinued. in September, 1916, since the defendant not having been served in the dispossess proceedings and plaintiff not having been made a party thereto, the plaintiff had not been evicted by paramount title, and could not therefore maintain his action upon the covenant in the lease. The present action was commenced on October 10, 1916, the plaintiff claiming to have been induced to make the lease by the representation of the defendant that the rent for December had already been paid by the defendant, and that because of the falsity of this representation the plaintiff elected to disaffirm the contract and tender back the lease and demanded the return of the $350 paid by him to the defendant. The plaintiff admits the nonpayment of the December rent, but denies that he had represented that the same had been paid, contending that at most he had merely undertaken to pay the December rent out of the said $350 paid by the plaintiff at the time of the execution of the original lease. The trial court has determined this issue of fact against the defendant, and this finding is amply sustained by the evidence. [1] The defendant, however, for a separate defense, sets up that the plaintiff is estopped from bringing this action by reason of his previous election to affirm the lease as evidenced by his bringing the former action upon the covenant of quiet enjoyment in the lease, after notice of the fraud. The plaintiff upon this trial testified that he did not have actual knowledge of the nonpayment of this rent at the time he commenced the former action, and did not positively know it until July, 1916, when the defendant admitted the fact. As against this, however, the plaintiff alleges in his complaint that he first discovered this nonpayment of the December rent on December 13, 1915, and certainly it must be concluded from the allegations in the complaint that the plaintiff had knowledge. Since the plaintiff elected to sue upon the covenant of quiet enjoyment contained in the lease, it must be held that the plaintiff elected to affirm the lease. This election must be held to have taken place, notwithstanding the fact that the former action was abandoned, since it is the affirmative act of the plaintiff in commencing the action which determines his election, and not the result of the action. Matter of Garver, 176 N. Y. 386, 68 N. E. 667; also Conrow v. Little, 115 N. Y. 387, at page 394, |