Sullivan v. George Ringler & Co.

74 N.Y.S. 978 | N.Y. App. Div. | 1902

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 adjudicata, after an appeal from the judgment has been taken, and an undertaking given to stay execution. This question must be decided in the affirmative, on the authority of Parkhurst v. Berdell, 110 N. Y. 386, 18 N. E. 123, 6 Am. St. Rep. 384, where, at page 392, 110 N. Y., page 125, 18 N. E., 6 Am. St. Rep. 384, it was said:

“As it appears to have been material to establish in this action some oí the matters adjudicated in that in favor of Mrs. Parlchurst, it was competent for her to establish them by the judgment roll introduced in evidence. But that judgment was rendered in September, 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, 23 N. Y. Supp. 520, and Sage v. Harpending, 49 Barb. 174.

The judgment should be affirmed, with costs. All concur.