Jones v. Underwood

13 Abb. Pr. 393, 35 Barb. 211

Opinion

By the Court.

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Whatever issues or questions in an action are adjudicated by a court, cannot again be the subjects of inquiry until the judgment is set aside by an appellate tribunal. Consequently such judgment can be set up as a bar to the same claim in another action. In the present case it appears, on the very face of the judgment, that the plaintiff’s demand was not passed upon by the court. It states expressly that the plaintiff applied for a discontinuance, and, when refused, declined to give any evidence; and the court merely considered the counterclaim of the defendant, who, in fact, then became the actor in the suit.

We think the plaintiff had a right to maintain this action for the demand, which he declined to submit for adjudication in the former action in the Superior Court.

Judgment affirmed, with costs.

Present, Clerkk, P. J,, Leonard and Ingraham, JJ.