15 Barb. 67 | N.Y. Sup. Ct. | 1853
The record of the recovery in the action by the present defendant against the plaintiffs’ intestate for want of care and skill in the performance of the services for which this action was brought, was excluded, for the reason that the record alone did not show that the services were the same in both actions. In this I think the justice erred.
' The only question, therefore, is- upon the. competency of the record as evidence in the, action. The rule is, that “ the judgment of a court of concurrent jurisdiction, directly on the point, is, as a plea, a bar, and as evidence, conclusive between the same parties, upon the same matter directly in question in another court.” (Le Guen v. Gouverneur, 1 John. Cas, 492.) ' It is too plain for argument that both actions in this case cannot be sustained; that if the defendant, was entitled- to . maintain the action brought in this court to recover compensation for damages sustained by reason of unskillful- and negligent - treatment, the plaintiffs are.not entitled to recover in this action for the same services. When a party undertakes a. work of skill and labor and performs it so unskillfully that his. employer derives no benefit from the work, he is not entitled to recover any thing, for his.labor. This, is an elementary principle; and i-f the
W. F. AUen, Hubbard and Pratt, Justices.]
The record of the former recovery was erroneously excluded. It was competent evidence, and conclusive against the plaintiffs, upon the question of negligence. The judgment of the county court, and of the justice, must be reversed.