FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. acts of the defendants mentioned in the complaint in that action. Plaintiffs' action was maintained by reason of the alleged wrongs and trespasses of the defendants under the acknowledged head of equity giving power to the court to prevent a multiplicity of suits, and allowing a recovery of damages as incidental to the equity relief. (Williams v. N. Y. C. R. R. Co., 16 N. Y. 111; Davis v. Lambertson, 56 Barb. 480; Hutchins v. Smith, 63 id. 252.) In that action plaintiffs were entitled to recover all the damages sustained up to the time of the trial thereof. (Beir v. Cooke, 37 Hun, 38; Robinson v. Smith, 25 N. Y. St. Repr. 653, and cases there cited.) In Meyer v. Phillips (97 N. Y. 485) it appeared an action was brought to restrain defendants from floating sawlogs in the waters of a stream, and in dealing with that action the court said that the defendants "threatened to commit, and claimed the right to repeat, the trespass every year. Here a preventive action was proper to prevent an irreparable injury within the meaning of the equitable rule, and also to avoid a multiplicity of suits," and in such an action it was said that damages sustained might be awarded to the plaintiff. In Shepard v. Manhattan R. R. Co. (117 N. Y. 442) it was held that property owners have a remedy in a court of equity in cases where the trespass is continuous in its nature in order to avoid a multiplicity of suits, "and they can recover the damages they have sustained, as incidental to the granting of the equitable relief," and it was further said that the violation of the rights to property having been adjudged in such an action, "the awarding of damages, sustained in the past from the defendants, follows, they being, on equitable principles, deemed incidental to the main relief sought." In Thomas v. Grand View Beach R. R. Co. (76 Hun, 603) the right to maintain an equity action was asserted, and it was said that in such action "complete relief could be awarded as justice between the parties should require." In Galway v. Metropolitan El. R. Co. (40 N. Y. St. Repr. 148) the opinion relates to the right of a party to maintain an action in a court of equity, under somewhat similar circumstances, and it was there said: "The cause of action, both at law and equity, in such cases arises out of the trespasses committed, and is based on the ownership of the property upon which the injuries are inflicted. The existence of a legal cause of action is not only a pre * * * Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. * * requisite to the maintenance of the equitable action, but is also the foundation of the jurisdiction which equity courts possess in respect to the subject-matter. * Inasmuch as the equitable remedy depends, among other things, upon the existence of a legal cause of action, it follows that those facts which will bar the legal action will also afford an answer to the equitable remedy, and that so long as a legal remedy exists an equity court is open to aid in the enforcement of the legal claim." If the former case had been a mere law action the damages recoverable would have been limited. to such as occurred prior to the commencement of the action. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Rumsey v. N. Y. & N. E. R. R. Co., 63 Hun, 205; Galway v. M. E. R. Co., supra.) In Hunter v. M. R. Co. (141 N. Y. 281) it was said that inasmuch as the action was on the equity side "where the main relief sought was an injunction against the continuance by the defendants of acts in violation of the plaintiff's property rights, an award of damages, for what past injuries might be shown to have been inflicted, would follow as incidental to the main relief. In such an action it is the settled rule that if the court decides that the claim for the equitable relief is well founded, it may proceed to assess the damages sustained, in its own discretion, and no absolute right exists to have them determined by a jury." In Lynch v. M. E. R. Co. (129 N. Y. 274) it was held, viz. : "Where a court of equity gains jurisdiction of a cause for one purpose it may retain it generally, and to do complete justice between the parties, ascertain and award damages as incidental to the main relief sought. Where, therefore, an equity court assumes jurisdiction to restrain a continuous trespass, in order to prevent a multiplicity of suits, it may proceed to give full relief, both for the tortious act and the resulting damages." In Van Allen v. N. Y. E. R. R. Co. (144 N., Y. 178) the question arose as to what damages might be recovered, and O'BRIEN, J., said: "The facts showing the right to the injunction are undoubtedly the basis for equitable relief in such cases, and the claim for damages is an incident which equity draws into the litigation in order to prevent a multiplicity of suits and to completely adjust all the rights of the parties. The measure of the relief is * FOURTH DEPARTMENT, FEBRUARY TERM, 1895. adapted to the situation at the time of the decree. principle is better established or more frequently asserted than that when a court of equity has once acquired jurisdiction over a cause for any purpose, it may retain the cause for all purposes and proceed to a final determination of all the matters at issue." It must be assumed that in the former action the plaintiffs could have recovered all damages which accrued prior to the decision which was made of that action apparently in September, 1887, upon which decision judgment was entered January 12, 1888. It was said in the opening in this case that in the former action evidence was given to support the complaint therein, and the counsel in the course of his remarks stated: "The main facts are in the former adjudication, and we shall ask this jury to give their attention more particularly to the amount of damages which the plaintiffs, the Inderlieds, have suffered. The former action found all the facts substantially that were necessary to substantiate our action, but in that action there was no proof as to the value of the damages." It follows from the cases to which reference has been made that the plaintiffs were entitled to recover such damages as they had sustained by reason of the wrongful acts of the defendants done at the time of the making of the decree in that action. The pleadings and concessions made upon the trial indicate that no wrongful acts were perpetrated by the defendants after the decree made in the former action. We are inclined to think that that judgment is a bar to the plaintiffs' right to recover for the matters referred to in the complaint in this action and in the opening made at the trial. ** In Smith v. Smith (79 N. Y. 634) it was held that "an estoppel by judgment in a former action arises when the same matter was at issue therein, and was either litigated by the parties and determined or it might have been litigated and a decision had upon it. * It is sufficient if there might have been judgment in the first action for the same cause alleged in the second." The same doctrine was laid down in Clemens v. Clemens (37 N. Y. 74), and referred to approvingly in Bloomer v. Sturges (58 id. 176). And in Jordan v. Van Epps (85 id. 436) it was said: "The judgment is final and conclusive between the parties, not only as to the matters actually determined but as to every other matter which the parties might Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation within the purview of the original action, either as a matter of claim or of defense." In Lorillard v. Clyde (122 N. Y. 47) it was said the omission to give proof of the damages would not affect the force to be given to the judgment. In the course of the opinion it is said: "Evidence merely tending to show that the defendants omitted to produce upon the trial all the evidence that was admissible in their behalf was immaterial. A judgment rendered on the merits is co-extensive with the issues upon which it is founded, and is conclusive between the parties thereto, not only as to the matters actually proved, argued and submitted for decision, but also as to every other matter directly at issue by the pleadings which the defeated party might have litigated." Numerous cases are then cited in support of the proposition thus stated. In the case before us the complaint, after setting out the various grounds for the supposed right to recover in this action, expressly avers, viz.: "That in an action in this court wherein said Inderlied, Son & Co. were plaintiffs and these defendants were defendants, it was found, adjudged, determined and decreed that the defendants herein had wrongfully done all the acts herein alleged and wrongfully caused all the damages and loss herein set forth." The plaintiffs were entitled to recover such damages in that action "as would necessarily and naturally result or be incurred from the injury complained of." (Argotsinger v. Vines, 82 N. Y. 314; Henderson v. N. Y. C. R. R. Co., 78 id. 423.) In McGean v. M. E. R. Co. (133 N. Y. 9) it was held that a party was entitled to preventive relief," and the court as a court of equity thus having jurisdiction for this purpose, had power to award the past damages;" and in the course of the opinion delivered in that case, at page 16, it is said that "If the controversy contains an equitable feature or requires any purely equitable relief belonging to the exclusive jurisdiction of equity, or pertaining to the concurrent jurisdiction of equity and law, and a court of equity thus acquires a partial cognizance of the action, it may go on to a complete adjudication and establish purely legal rights and grant legal remedies, which would, otherwise, be beyond the scope of its authority. (Pom. Eq. Juris. §§ 181, 231, 242.) So long as one of the grounds FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. of equitable interference in this class of cases is the avoidance of a multiplicity of suits, this rule must prevail." The foregoing views lead to the conclusion that the result reached at the Circuit should be sustained. MARTIN and MERWIN, JJ., concurred. Judgment and order affirmed, with costs. FOREST G. WEEKS, Appellant, v. JOSEPH BINNS, Respondent. Parol evidence — admissible to establish a contract, only in part reduced to writing. The rule which rejects parol evidence, when offered in respect to a written contract between parties, has no application to a case where a part only of the original agreement is in writing and the rest is verbal if the verbal part is not inconsistent with the portion in writing. It was shown upon the trial of an action brought to recover the agreed value of certain carboys returned by the plaintiff to the defendant, that the plaintiff gave an order in writing to the defendant for certain carboys, which was accepted by the defendant in writing in the following language: "Dec. 28, 1888. "JOSEPH BINNS, 183 Pearl St., New York. "You may enter an order for 140 carboys 66 brimstone acid at 95c. per 100 lbs., delivered F. O. B. cars at Mill 60 days breakage guaranteed. Shipment to be made Feby. 1st, with privilege to increase order to larger carload if Skaneateles Paper Co. wishes to go in. Yours, 'Accepted. F. G. WEEKS, "JOSEPH BINNS, "Per JOSEPH HARRINGTON." C. G. W. After the written order was given the plaintiff's agent stated to the defendant's agent that the usual arrangement for returning the carboys would apply to the carboys in question, and he said it would, and the price to be paid for them should prevail. The witness added, "I had written the order and he had signed it before anything was said about the carboys: I copied it in * * * the letter book, and as I handed it to him I had the conversation about the carboys." The defendant's counsel moved to strike out the evidence. The motion was granted and an exception was taken. The plaintiff in effect offered to show that it was well understood by both parties that he should be allowed the price that he paid for the carboys. It was conceded that the plaintiff paid a certain amount for each carboy, and in effect the |