Halladay v. Kolner

Appellate Division of the Supreme Court of New York

Halladay v. Kolner

276 A.D.2d 943

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 11, 1950

StatusPublished

This text of 276 A.D.2d 943 (Halladay v. Kolner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Halladay v. Kolner, 276 A.D.2d 943 (N.Y. Ct. App. 1950).

Pincite

Opinion

Memorandum: The defendant-appellant in these two actions urges that a judgment in a prior action, in which it was adjudged that the respondents-plaintiffs here were guilty of negligence which caused the accident, is a bar to any recovery by the respondents in these actions. Appellant has not pleaded the prior judgment. The general rule laid down in Krekeler v. Ritter (62 N. Y. 372, 374) and consistently followed by the courts is that when a prior judgment is offered in evidence “ as constituting a bar, or as an estoppel to the action ”, it cannot be received unless it had been pleaded as a defense. We do not think the decision in Levine V. Behn (282 N. Y. 120) abrogated that rule. Under the pleadings here the defense of res judicata is not available to the appellant. We pass on no other question. All concur. (The order appealed from denies a motion for. summary judgment dismissing the complaint in the two actions.) Present — Taylor, P. J., MeCurn, Love, Kimball and Piper, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Memorandum: The defendant-appellant in these two actions urges that a judgment in a prior action, in which it was adjudged that the respondents-plaintiffs here were guilty of negligence which caused the accident, is a bar to any recovery by the respondents in these actions. Appellant has not pleaded the prior judgment. The general rule laid down in Krekeler v. Ritter (62 N. Y. 372, 374) and consistently followed by the courts is that when a prior judgment is offered in evidence “ as constituting a bar, or as an estoppel to the action ”, it cannot be received unless it had been pleaded as a defense. We do not think the decision in Levine V. Behn (282 N. Y. 120) abrogated that rule. Under the pleadings here the defense of res judicata is not available to the appellant. We pass on no other question. All concur. (The order appealed from denies a motion for. summary judgment dismissing the complaint in the two actions.) Present — Taylor, P. J., MeCurn, Love, Kimball and Piper, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

276 A.D.2d 943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halladay-v-kolner-nyappdiv-1950.

Opinion

Related

Cite This Page — Counsel Stack