75 N.Y. 150 | NY | 1878
The plaintiff sued the defendant for malpractice as a physician and surgeon. He obtained a verdict for $1,000. One of the defenses set up by the answer, and urged at the trial, was this: That the defendant had before that sued the plaintiff in a court of a justice of the peace; that the action there was for services rendered by him to the plaintiff as a physician and surgeon; that he recovered a judgment therefor, which included the value of the same services that constituted the alleged malpractice; that the plaintiff appeared in that court and put in an answer to the complaint, but afterwards withdrew the same, and did not contest the defendant's claim.
The question now is, whether the judgment so recovered is a bar to the action for malpractice.
It must be considered as settled in this State, that a judgment in favor of a physician and surgeon for his professional services, rendered by a court of competent jurisdiction, in an action in which the defendant appeared and answered, setting up a defense which he maintained at the trial, or in an action in which he appeared and signed and filed a written confession of judgment for the amount of the services, is a bar to an action for malpractice by that defendant against that physician and surgeon for malpractice in rendering those services. (Bellinger
v. Craigue, 31 Barb., 534; Gates v. Preston,
These decisions cited are put upon the principle of resadjudicata; that is, that the same question now raised between the parties has been once judicially decided between them, or their privies in blood, law or estate, and the *153
judgment thereon remains unreversed. The facts actually decided by an issue in any suit cannot be again litigated between the same parties, and are evidence between them, and that conclusive, for the purpose of terminating the litigation; and so are the facts alleged by one party and directly admitted by the other. It matters not in what court a judgment, relied upon as a bar, has been rendered, so that it had jurisdiction. (Smith v.Hemstreet,
It seems that these general principles embrace the case in hand; but it is claimed that this case is to be excepted therefrom, and from the force of the decisions above cited, for that there was no issue joined and kept alive in the court of the justice of the peace until the trial there; the defendant in the action there having withdrawn the answer put in by him, and declined to litigate there with the plaintiff. That fact will not avail. It was held in Brown v. The Mayor, etc. (
The order appealed from should be affirmed, and judgment absolute given for defendant on stipulation, with costs.
All concur, except MILLER and EARL, JJ., absent.
Order affirmed, and judgment accordingly.