Morgan, J.
In this action the plaintiff claims damages of the defendant for the loss of services of his wife, on account of the alleged malpractice of the defendant, who, as surgeon and physician, was employed to set, reduce and cure a broken leg of plaintiff’s wife ; but by negligence, ignorance and unskillfullness in his profession failed to cure it; and under his treatment it in fact became incurable. In consequence of which the plaintiff was deprived of her services and put to great expense in procuring other professional aid and assistance.
The defendant denied the allegations of the' complaint; and answered specially, that the reason why the limb did not heal was through the mere negligence, carelessness and mismanagement of plaintiff’s wife. After the issue was thus joined, the defendant sued the plaintiff before a justice of the peace of Little Falls, Herkimer county. The parties duly appeared before the justice and joined issue. The defendant, who was plaintiff before the justice, complained and alleged that Bellinger was indebted to him in the sum of $100 for medicines and professional services, and especially for professional services and shill bestowed in attending the wife of Bellinger, and in setting, securing and attending to a fractured limb of Bellinger’s wife. Bellinger’s answer before the justice denied each and every allegation of the complaint. It also averred that the services were so unskillfully performed that they were of no value. And Bellinger claimed judgment for costs of suit.
On the trial before the justice, Bellinger informed the justice that he withdrew his second answer, and all claim and defense founded upon any'Want of care in Craigue. Craigue objected to its withdrawal, but the justice overruled the objection. The justice therefore, on proof of Craigue’s bill for attendance upon Mrs.- Belliüger, allowed for every visit and the price as charged by him. The justice says that he did not in fact take into consideration the claim for malpractice. Judgment was rendered for Bellinger for the amount of his bill, [536]*536$15..5.Q, besides costs of action. The defendant in this action, Dr.:, Oraigue, obtained permission to put in a supplemental answer,to .the plaintiff’s complaint, and to set up the justice's judgment, thus obtained, as a bar to the plaintiff’s demand.
,.T-he cause was .tried "before Justice Muxlin, at Herkimer, in May, 1858; and the plaintiff, Bellinger, having given evidence tending to prove a case of malpractice, the defendant, under,objections from .the plaintiff’s counsel, was allowed to prove the pleadings, proceedings and judgment before the justice as above detailed. Justice Mullin, however, reserved the question as to the legal effect, of these proceedings, and finally overruled the defense ; and the defendant went into proof on his part, tending tp show that it was not his, but Mrs. Bellinger’s, fault, that the limb did not get well. The question of negligence was submitted to the jury, and they found a verdict agqinstthe defendant and in favor of the plaintiff, for nine, hundred;. dollars damages. Exceptions being taken.by the, defendant, the question comes up, on appeal to this court, whether the judgment of the justice, at Little Falls, between these same parties, is a bar to the plaintiff’s demand in this action;. , •
■ The plaintiff’s counsel makes a point, or rather a suggestion, that the .limited jurisdiction of a justice’s court will in some way impair or. diminish the conclusiveness of his judgments as. to those matters within his jurisdiction. He, however, finally admits that it is too late to ask a decision against the conclusiveness of a justice’s judgment on this ground. And in this concession, which is doubtless due to the authorities in this country, the counsel must see that it is the duty of this court to give full effect to the maxim, interest reipublica ut sit finis litium, by making the judgment of a justice’s court final, as to the subject matter thereby determined.
There is also a suggestion in the counsel’s argument, that the justice’s judgment was fraudulently obtained, and therefore it may be disregarded, or in some way weakened, so as not to conclude the parties in this action. But it would not [537]*537become us to listen to this suggestion, when there is no intimation in the pleadings or evidence, that the judgment was fraudulently obtained.
The question then is narrowed down to the single point, whether the plaintiff’s demand in this action was adjudicated before the justice’s court. It may be conceded that it was not actually litigated there ; for it was finally withdrawn from the consideration of the court; and the justice says that he did not in fact take it into consideration. Still it cannot be denied that the judgment of a competent court is not only conclusive on all questions actually and formally litigated, but as to all questions within the issue, whether formally litigated or not. (LeGuen v. Gouverneur, 1 John. Cases, 492. Marriott v. Hampton, 7 T. R. 265. Davis v. Tallcott, 2 Kern. 184. Jones v. Scriven, 8 John. R. 453. 2 Smith’s Lead. Cas. 442, (in notes;) and see Fidler v. Cooper, 19 Wend. 285; Edwards v. Stewart, 15 Barb. 67.)
In this case, the defense being withdrawn, it cannot be said that it was actually litigated ; and if the plaintiff is barred of his action, it is because his demand was impliedly and necessarily within the issue joined before the justice, and its determination necessarily included in the judgment.
A fact impliedly ^averred may be traversed in the same manner as if it was expressly averred. (Prindle v. Caruthers, 15 N. Y. R. 429. Haight v. Holley, 3 Wend. 263. Chambers v. Jones, 11 East. 406.) The general denial of the code doubtless puts all the allegations of the complaint in issue, whether expressed or implied. If the plaintiff’s claim is a denial of the defendant’s claim before the justice, and not new matter, it was within the issue tried before the justice. But if it is new matter, it was not within the issue. The new matter mentioned in § 149 of the code, is -that which aHinits and avoids the cause of action set up imthe complaint, and constitutes a defense. (Brazill v. Isham, 2 Kern. 9; and see 3 Duer, 685; 12 How. 445.) It must be specially pleaded. (McKyring v. Bull, 16 N. Y. Rep. 297.) The denial of the [538]*538plaintiff’s complaint, before the justice, must therefore be held and regarded as putting in issue all the allegations of the complaint, and as controverting all the facts stated or implied therein ; but it did not put in issue any neto matter ; and if the second answer constituted new matter, it was hot within the issue formed by the second denial. But was it new matter of defense ? or was it admissible under the general denial ? Clearly^ if Dr.
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Morgan, J.
In this action the plaintiff claims damages of the defendant for the loss of services of his wife, on account of the alleged malpractice of the defendant, who, as surgeon and physician, was employed to set, reduce and cure a broken leg of plaintiff’s wife ; but by negligence, ignorance and unskillfullness in his profession failed to cure it; and under his treatment it in fact became incurable. In consequence of which the plaintiff was deprived of her services and put to great expense in procuring other professional aid and assistance.
The defendant denied the allegations of the' complaint; and answered specially, that the reason why the limb did not heal was through the mere negligence, carelessness and mismanagement of plaintiff’s wife. After the issue was thus joined, the defendant sued the plaintiff before a justice of the peace of Little Falls, Herkimer county. The parties duly appeared before the justice and joined issue. The defendant, who was plaintiff before the justice, complained and alleged that Bellinger was indebted to him in the sum of $100 for medicines and professional services, and especially for professional services and shill bestowed in attending the wife of Bellinger, and in setting, securing and attending to a fractured limb of Bellinger’s wife. Bellinger’s answer before the justice denied each and every allegation of the complaint. It also averred that the services were so unskillfully performed that they were of no value. And Bellinger claimed judgment for costs of suit.
On the trial before the justice, Bellinger informed the justice that he withdrew his second answer, and all claim and defense founded upon any'Want of care in Craigue. Craigue objected to its withdrawal, but the justice overruled the objection. The justice therefore, on proof of Craigue’s bill for attendance upon Mrs.- Belliüger, allowed for every visit and the price as charged by him. The justice says that he did not in fact take into consideration the claim for malpractice. Judgment was rendered for Bellinger for the amount of his bill, [536]*536$15..5.Q, besides costs of action. The defendant in this action, Dr.:, Oraigue, obtained permission to put in a supplemental answer,to .the plaintiff’s complaint, and to set up the justice's judgment, thus obtained, as a bar to the plaintiff’s demand.
,.T-he cause was .tried "before Justice Muxlin, at Herkimer, in May, 1858; and the plaintiff, Bellinger, having given evidence tending to prove a case of malpractice, the defendant, under,objections from .the plaintiff’s counsel, was allowed to prove the pleadings, proceedings and judgment before the justice as above detailed. Justice Mullin, however, reserved the question as to the legal effect, of these proceedings, and finally overruled the defense ; and the defendant went into proof on his part, tending tp show that it was not his, but Mrs. Bellinger’s, fault, that the limb did not get well. The question of negligence was submitted to the jury, and they found a verdict agqinstthe defendant and in favor of the plaintiff, for nine, hundred;. dollars damages. Exceptions being taken.by the, defendant, the question comes up, on appeal to this court, whether the judgment of the justice, at Little Falls, between these same parties, is a bar to the plaintiff’s demand in this action;. , •
■ The plaintiff’s counsel makes a point, or rather a suggestion, that the .limited jurisdiction of a justice’s court will in some way impair or. diminish the conclusiveness of his judgments as. to those matters within his jurisdiction. He, however, finally admits that it is too late to ask a decision against the conclusiveness of a justice’s judgment on this ground. And in this concession, which is doubtless due to the authorities in this country, the counsel must see that it is the duty of this court to give full effect to the maxim, interest reipublica ut sit finis litium, by making the judgment of a justice’s court final, as to the subject matter thereby determined.
There is also a suggestion in the counsel’s argument, that the justice’s judgment was fraudulently obtained, and therefore it may be disregarded, or in some way weakened, so as not to conclude the parties in this action. But it would not [537]*537become us to listen to this suggestion, when there is no intimation in the pleadings or evidence, that the judgment was fraudulently obtained.
The question then is narrowed down to the single point, whether the plaintiff’s demand in this action was adjudicated before the justice’s court. It may be conceded that it was not actually litigated there ; for it was finally withdrawn from the consideration of the court; and the justice says that he did not in fact take it into consideration. Still it cannot be denied that the judgment of a competent court is not only conclusive on all questions actually and formally litigated, but as to all questions within the issue, whether formally litigated or not. (LeGuen v. Gouverneur, 1 John. Cases, 492. Marriott v. Hampton, 7 T. R. 265. Davis v. Tallcott, 2 Kern. 184. Jones v. Scriven, 8 John. R. 453. 2 Smith’s Lead. Cas. 442, (in notes;) and see Fidler v. Cooper, 19 Wend. 285; Edwards v. Stewart, 15 Barb. 67.)
In this case, the defense being withdrawn, it cannot be said that it was actually litigated ; and if the plaintiff is barred of his action, it is because his demand was impliedly and necessarily within the issue joined before the justice, and its determination necessarily included in the judgment.
A fact impliedly ^averred may be traversed in the same manner as if it was expressly averred. (Prindle v. Caruthers, 15 N. Y. R. 429. Haight v. Holley, 3 Wend. 263. Chambers v. Jones, 11 East. 406.) The general denial of the code doubtless puts all the allegations of the complaint in issue, whether expressed or implied. If the plaintiff’s claim is a denial of the defendant’s claim before the justice, and not new matter, it was within the issue tried before the justice. But if it is new matter, it was not within the issue. The new matter mentioned in § 149 of the code, is -that which aHinits and avoids the cause of action set up imthe complaint, and constitutes a defense. (Brazill v. Isham, 2 Kern. 9; and see 3 Duer, 685; 12 How. 445.) It must be specially pleaded. (McKyring v. Bull, 16 N. Y. Rep. 297.) The denial of the [538]*538plaintiff’s complaint, before the justice, must therefore be held and regarded as putting in issue all the allegations of the complaint, and as controverting all the facts stated or implied therein ; but it did not put in issue any neto matter ; and if the second answer constituted new matter, it was hot within the issue formed by the second denial. But was it new matter of defense ? or was it admissible under the general denial ? Clearly^ if Dr. Craigue had set forth the cop-tract in his complaint, as the law would interpret it, he would have substantially charged “ that being a surgeon and physician, he Undertook, for a reasonable compensation to be paid to him by Bellinger, to treat his wife’s broken limb with a reasonable degree of care and skill."^The law implies a promise on the part of the surgeon, that he has ordinary skill, and that he will execute the business entrusted to him with ordinary care and skill. If he fails in this duty, he is guilty of default in his undertaking, and cannot collect the pay for his services, but is liable in damages to the persons who employed, him. (1 Chitty on Cont. 482, 3.) The contractis entire, and performance is necessary, to entitle the surgeon to recover any things If the complaint had expressed such a contract, and if it had alleged before the justice that the doctor had performed it in all things on his part, a denial of these allegations would have put the question directly in issue. It would " ' not be new matter} to deny that the doctor had performed his contract as thus stated in his complaint; and yet it would'be a full defense to the action, if Bellinger had succeeded in proving it. The law would not, on the trial, presume that the plaintiff had neglected his duty and made default in his undertaking ; for a breach of duty, or negligence, or fraud are not to be presumed. (Starr v. Peck, 1 Hill, 270.) The burden of proof is therefore cast upon the defendant, to disprove the allegation of performance, in such a complaint. Bqt-if he neglects to offer any such proof, the fact of performance^^-presumed, and necessarily must be, to authorize the doctor to recover for his services. The judgment of the justice in favor [539]*539of the plaintiff in such a case, would imply jsrformance of the contract on his part. The fact of performande is found, or adjudicated in favor of the doctor ; and I think cannot be again disputed, in an action between the same parties. _ ^
Now although new matter cannot be proved under a general denial, most of the defenses which could have been proved under the old general issue of non-assumpsit, such as release, statute of limitations, insolvent discharge, arbitrament, &c., must still be brought forward by the defendant as matters of' special defense, or the defendant loses the benefit of them. These defenses will not support an action, but must be used, if at all, to defeat an action. It is, however, different with the defense called a counter-claim. That may be used to sustain, as well as to defend, an action. It may co-exist with the plaintiff’s claim, and is simply a cross action, to enforce a legal or equitable set-off. It admits thé plaintiff’s demand, but seeks to reduce it, or even extinguish it, by a legal or equitable offset. And I think the defendant always has an election to recoup his damages or wait and bring his suit. It may well be that his damages exceed the plaintiff's demand, and as he cannot split up his claim and use part of it to extinguish the plaintiff’s demand, and bring suit for the residue, his damage, in any case. Nor do I think the authorities require it of him. (Reab v. McAlister, 8 Wend. 109. 14 id. 257. 5 Hill, 76.)
But where there is no claim on the part of the plaintiff there cannot, strictly and logically speaking, be a counterclaim. The claim of Bellinger against the defendant in this case does not admit the defendant’s claim, but denies its existence, altogether. The two claims cannot coexist. If Bellinger’s claim is good, and if judgment had passed in his favor before the suit in the justice’s court was disposed of, it would have estopped the defendant from saying that he had performed his contract, and would have barred his action before the justice. This point was decided in the case of Edwards v. Stewart, in this court. As estoppels are mutual, [540]*540the converse of the proposition must be held'¡in this -case. And I think the point is thus held in Davis v. Taloott in the court of appeals. (See Judge Gardiner’s opinion, 2 Kernan, 189.)
[Onondaga General Term,
July 3, 1860.
■ The result is that the judgment must be reversed, arid a new trial granted, costs to abide the event. ■
Allen, J. concurred.
Mullin, J. dissented.
Judgment reversed.
Allen, Mullin and Morgan, Justices.]