Derby v. Hartman

3 Daly 458

Opinion

By the Court.

*

Daly, Chief Justice.

It is not necessary to go over the exceptions taken upon the trial, for the defendant specifically excepted to everything found by the court. We shall therefore pass only upon the points raised upon the argument of this appeal.

The record of the Superior Court was proved in the manner provided by law. (2 Rev. Stat. 403, § 59, The People v. Ransom, 4 Denio, 147.) It was a record of the judgment of a court of concurrent jurisdiction between the same parties upon exactly the same matter which was put in issue by the defendant’s answer, and it is settled since the Dutchess of Kingston's Case (11 State Trials, 26 L), that such a record is conclusive and final between the same parties, upon the same matter coming directly in question in another suit, and that it can be set up in the answer as a bar, or given in evidence upon the trial under any form of pleading which amounts to a general denial of the matter in respect to which it is conclusive. (Gardner v. Buckbee, 3 Cow. 120; Burt v. Steenburgh, 4 Id. 599; Embury v. Conner, 3 N. Y. 522; Demarest v. Darg, 32 N. Y. 281).

The offer of the defendant was to prove the matters alleged in his answer, which was an offer to try again what had already been tried and in respect to which the record of the Superior Court was conclusive. It was distinguishable from the cases upon which the defendant relies, in which the judgment record was apparently for the same cause of action, and the evidence was received to show that the demand was a different one in. respect to which no testimony had been given, and which was therefore not taken into consideration upon the trial. (Phillips v. Berick, 16 Johns. 136; Snider v Croy, 2 Id. 227.)

The judgment should be affirmed. .

Judgment affirmed.

Present—Daly, Ch. J., Loew and Larremore, JJ.