Sullivan v. George Ringler & Co.

69 A.D. 388

Opinion

Goodrich, P. J.:

The only question involved in this appeal is whether a. judgment between the same parties-on the same subject-matter is res adjudícala after an appeal from the judgment has been taken and an undertaking given to stay execution.

This question must be decidéd in the affirmative, on the authority of Parkhurst v. Berdell (110 N. Y. 386), where (at p. 392) it was said: “ As it appears to have been material to establish in this action some of the matters adjudicated in that in favor' of -Hrs. Parkhurst, it was competent for her to establish them by the judgment-roll introduced in evidence. But that judgment was rendered in Septeniber, 1878, and before the trial of this action an appeal had been taken to the General Term. That is all that appeared upon the trial of this action. But the appeal did not suspend the operation of the - judgment as an estoppel.” (See, also, similar doctrine declared in Stevens v. Stevens, 69 Hun, 332, 336, and Sage v. Harpending, 49 Barb. 174.)

The .judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.