
    The Standard Supply and Equipment Company, Respondent, v. William J. Merritt, Appellant.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Former adjudication — Judgment by default — Conclusive evidence though' not pleaded — Evidence — Documentary — Judgment.
    A prior judgment between the same parties, although it was obtained by default and was not pleaded, is conclusive evidence between them as to the facts necessarily involved; and it is within the discretion of the trial court to reopen the case, after both parties, have rested, and to permit the judgment to be introduced in evidence.
    Appeal by the defendant from a judgment, entered in favor of the plaintiff in the City Court of the city of New York, after a trial before the court and a jury.
    John Larkin, for appellant.
    Edwin Louis Garvin, for respondent.
   Scott, J.

In April, 1904, the defendant gave to plaintiff four promissory notes, aggregating $6,500, upon the purchase of certain machinery. The notes all rested upon the same consideration. The four notes were sued separately and the pleadings in each case were so far identical that the same issues were presented in each. After this action had proceeded to issue and before the trial, one of the other actions came on for trial and defendant defaulted, whereupon judgment in favor of the plaintiff was entered. That judgment had not, when this action was tried, been vacated or reversed. Upon the trial of this action, after much testimony had been taken, the plaintiff introduced in evidence the judgment in the other action; whereupon the learned justice, holding the defendant’s liability to be res adjudicada, directed a verdict for the plaintiff. As has been said, the issues in the two actions were identical and, consequently, upon the plainest principles, the judgment first obtained was' conclusive evidence as to every relevant and contested fact in favor of the plaintiff. It does not matter that the first judgment was obtained by default, because such a judgment is precisely as effective as an adjudication as one which has followed upon a contested trial. Henriques v. Yale University, 28 App. Div. 354. Nor is it of any moment that the judgment was not pleaded. The issues between the parties were issues of fact, to be determined by evidence. The judgment was conclusive evidence between the parties as to the facts necessarily involved, and it was as such evidence that it was offered and received. It is only when it is desired to use a judgment as a bar that it is necessary to plead it. It may,, without being pleaded, be used as evidence, and conclusive evidence, of the facts established thereby. Krekeler v. Ritter, 62 N. Y. 372. All the facts involved in the issues raised by the pleadings having been thus conclusively determined in plaintiff’s favor, there was nothing left for submission to the jury, and the court was right in directing a verdict. For the same reason, it is unnecessary to consider any of the exceptions to the admission or rejection of evidence. The court acted within its discretionary powers in permitting the plaintiff to reopen the ease and offer the judgment in evidence, after both parties had rested, and bis exercise of this power calls for no action on our part.

Gildersleeve and MacLean, JJ., concur.

Judgment affirmed, with costs.  