41 N.Y. 113, Gates v. Preston

Citation:41 N.Y. 113
Party Name:SHELDON B. GATES, Appellant, v. JOHN R. PRESTON, Respondent.
Case Date:September 24, 1869
Court:New York Court of Appeals

Page 113

41 N.Y. 113

SHELDON B. GATES, Appellant,


JOHN R. PRESTON, Respondent.

New York Court of Appeal

September 24, 1869

Argued Jun. 18th, 1869.

Page 114


William A. Beach, for the appellant, cited McDonald v. Christie (42 Barb., 36); Hancock v. Palmer (17 Abbott, 335); Barton v. Burt (17 Abbott, 349); Welch v. Harleton (14 How., 97); Batterman v. Pierce (3 Hill, 171); Gillespie v. Torrance (25 N.Y. 306, 310); Barton v. Burt (43 Barb., 628).

Alembert Pond, for the respondent, upon the general question, cited Bellinger v. Carigue (31 Barb., 534); Davis v. Talcott (2 Kern., 184); Edwards v. Stewart (15 Barb., 67); Higgins v. Meyer (10 How. Pr. R., 363); Birkhead v. Brown (3 Sandf., 134); White v. Merret (3 Seld., 352); Bartholomew v. Yaw (9 Paige, 167).That the justices' judgment was equally a bar, though upon confession as upon issue joined, he cited French v. Chatwell (5 J. Ch., 555); White v. Merrett (supra); Baron v. Abeel (3 J. R., 481); Bradford v. Bradford (5 Conn., 127); Cow. & Hill, notes, 850).


As a general rule, the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties upon the same question, in another court.

That was the rule laid down in the Duchess of Kingston's case (20 Howell St. Tr., p. 538), and is not questioned in any of the authorities cited by the counsel of the plaintiff, nor by the learned justice delivering the dissenting opinion in this case.

Page 115

They, however, contend and insist that it applies only to cases where there has been an issue, and that in the language of the plaintiff's counsel: "There must be a judicial decision upon an unconfessed right of action."

No authority to sustain that distinction or exception has been cited; but the decisions in Baron v. Abeel (3 John. Rep., p. 481), and in White v. Merritt (3 Selden, p. 352), referred to in the opinion of BOCKES, J., at Special Term, and of ROSEKRANS, J., at General Term, establish the contrary, and show that the rule also applies to a judgment by default. In such a case the right of action (there being no denial thereof) is by implication admitted, and when there is in the answer of the defendant an express and direct admission by him of the plaintiff's right to recover, and a consent to the entry of a judgment for a certain amount...

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