
    Magnolia Metal Company, Respondent, v. John Sugden, Defendant, Impleaded with John Lulham Pound, Appellant.
    
      Stipulation that a decision in another action between the same parties shall be con elusive — what must be shown to make it operative.
    
    Under a stipulation that the decision upon certain counterclaims sought to he set up in another action between the same parties, in which the defendants in the action in which the stipulation is given are plaintiffs and the- plaintiff therein is a defendant, shall he conclusive in the determination of the issues in the latter action, the party interposing the counterclaims should not introduce in evidence all the testimony given in the action referred to in the stipulation; he should put in evidence the judgment entered therein.
    Appeal by the defendant, John Lulham Pound, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York On the 14th day of August, 1900,-upon the report of a referee.
    
      Cephas Brcdnerd, for the appellant.
    
      Alexander 8. Baeon, for the respondent..
   Pee Cueiam :

We are unable to find any basis of support for the judgment which has been entered herein. It is claimed by the plaintiff that the parties had, by stipulation, authorized the entry of judgment and that our former decision herein (lawlor v. Magnolia Metal Co., 33 App. Div. 356), is conclusive upon every question which the case involves. The difficulty with this contention' lies in the fact that the stipulation of which the plaintiff seeks to- avail itself furnishes authority only for the entry of judgment when the determination and decision "of the •court upon the counterclaims of the plaintiff, sought to be set up in another action wherein these defendants are plaintiffs and this plaintiff is defendant, has been rendered and proved upon the trial herein. "The stipulation requires such proof. It is such judgment and nothing else that the parties have stipulated to regard as conclusive upon the issues in the present action as set forth in the complaint. It is evident, therefore, that the plaintiff in order to avail itself of the provisions of the stipulation was required to prove the judgment as rendered in the first-named action, otherwise, there would be nothing before the court authorizing any judgment in favor of the plain-, tiff based upon any of the provisions of the stipulation. Eor aught that appears in the present record there is no judgment in such action, and it is nowhere made to appear that if there' was such judgment it entitles the plaintiff to the judgment which has been ■entered herein; consequently, there was nothing made to appear before the referee to show that the plaintiff was entitled to the judgment by virtue of the provisions of the stipulation or otherwise.

It appears in the record that the plaintiff introduced in evidence .all the testimony taken in the action mentioned in the stipulation. There exists nó authority in law authorizing a cause of action to be established in that manner, and there is nothing in the terms of the stipulation which authorized such-proof or the entry of judgment thereon. The objection which was made when such proof was offered should have been sustained, and the exception taken to the ruling of the court thereon presents reversible error. Undoubtedly the plaintiff had the right to establish its cause of action independent of the stipulation, but such course would require its establishment by common-law proof, of which, in this record, there is not a scintilla. Had the judgment in the other action been proved, there was no necessity for the introduction of the testimony upon which it was based, as that was not a provision of the stipulation. Under such circumstances, it is quite likely that the introduction of testimony in bulk, although objected to, would not present reversible error, as the defendants would not have been prejudiced thereby; but as there is nothing in this record upon which any judgment in favor of the plaintiff is authorized, either by stipulation or otherwise, it follows that the judgment should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.

Present — Van Brunt, P. J., Rumsey, Ingraham, McLaughlin and Hatch, JJ.

Judgment reversed, new trial ordered before another referee, costs to appellant to abide event:  