24 N.Y.S. 826 | New York Court of Common Pleas | 1893
Plaintiff sued as assignee of one Wolf Green-berg to recover the sum of $80.30, the agreed value of certain work, labor, and services performed by the latter upon a number of coats at defendant’s request, and sufficient evidence was adduced on the trial to support the cause of action. Among the defenses wás that, by former adjudication between Greenberg, plaintiff’s assignor, and defendant, in an action for the claim and delivery of of the same coats, it was determined that Greenberg was entitled to no more than $45.50 for such services, which sum, it was claimed, had been tendered him before the commencement of this action. It was also contended for defendant that in the replevin action-she recovered judgment against Greenberg for $22.50 costs, and that amount she sought to have allowed, her out of any recovery by the plaintiff in this action. In support of the defense of former adjudication and of the counterclaim, defendant introduced in evidence what purported to be a judgment roll of the ninth district court in the city of New York, in an action wherein Minnie Mothner, the defendant herein, was plaintiff, and said Wolf Green-berg and one Abraham Petzkey were named as defendants. That record, however, did not in terms purport to be more than a “judgment for the plaintiff” named therein “for return of the coats and $22.50 costs.” It did not state specifically that it is a judgment against the persons named as defendants, or either of them; nor did it appear therefrom that Greenberg either appeared or was served with the summons in the action. It is impossible, therefore, to ascertain from an inspection of the record that judgment was awarded against Greenberg, plaintiff’s assignor, or that Green-berg was concluded by it. Defendant’s attorney, who was also plaintiff’s attorney in the replevin action, testified as a witness for the defendant herein that Greenberg had appeared by attorney and as a witness in the replevin action, and had contested the right of the plaintiff therein to recover. He also testified to the substance of the issues litigated in the replevin action. Assuming-now that the facts are as testified to by defendant’s attorney, they show, at most, that the justice, at the time of the trial of the replevin action, could have rendered an effectual judgment against Greenberg, not, however, that he did render judgment against him; hence the record remained ineffectual for the purposes for which it was offered. Matter dehors the record is not competent to show that the record is a judgment for or against a particular person. 1 Black, Judgm. § 116 et seq.; Collins v. Hyslop, 11 Ala. 508; Finnagan v. Manchester, 12 Iowa, 521; McCartey v. Kittrell, 55 Miss. 253; Smith v. Chenault, 48 Tex. 455; Hays v. Yarborough, 21 Tex. 487; Little v. Birdwell, 27 Tex. 688; Wilson v. Nance, 11 Humph. 189. The fact must be ascertainable from the record itself.
This action was tried May 12, 1893, and on the same day the
