
    Julius Freudenheim et al., Appellants, v. Julia Raduziner, Respondent.
    (New York Common Pleas — General Term,
    December, 1895.)
    1. Actions.— Severance —Effect of offer of judgment.
    The entry of judgment-upon an offer merges the entire cause of action set forth in the complaint, and determines the action.
    2. Same—Waiver of effect of judgment.—Evidence.
    The effect of.'such judgment is’waived, however, where the parties proceed to ai'trial of the remaining issues without objection, and in such case the judgment is not admissible in bar of the action.
    Appeal from a judgment of the General Term of the City-Court of ISTew York, which affirmed a judgment entered upon a verdict directed by the trial court in favor of the defendant.
    
      Wales F. Severance, for appellants.
    
      A. H. Berrick, for respondent.
   Bischoff, J.

The action was to recover for goods sold and delivered, to which an answer was interposed which admitted a certain amount as due and owing' and denied any further indebtedness. With the answer- the defendant caused to be served an offer to allow judgment to be taken against her for a stated amount, with - interest and costs. Code Civ. Proc. § 738. Thereupon the plaintiffs secured an order, upon their motion, which provided for a severance of the action, permitted judgment- to be entered severally for the amount admitted by the answer to be due and owing, and continued the action for the residue of the plaintiffs’ claim. Code Civ. Proc. § 511. On the next succeeding day the plaintiffs caused judgment to be entered upon the defendant’s offer and their acceptance thereof. Later the supposed cause was called for trial, and the parties proceeded to litigate the issues. The plaintiffs established a prima facie right to recover the amount for which judgment was demanded in the complaint, and the defendant, against the plaintiffs’ objection that the defense of former recovery was not pleaded, and under'exception to the ruling,- was permitted to introduce the judgment roll above alluded to in evidence. The trial court held the judgment te be a bar to the plaintiffs’ further recovery, and, under exception, directed a verdict for the defendant. From the judgment which was entered upon the verdict, and the judgment-of affirmance at General Term below, the present appeal was-taken.

It is apparent that the trial court, as well as counsel for all the litigants, misapprehended the effect of the judgment which had been entered upon the defendant’s offer. Such judgment, merged the entire cause of action as set forth in the complaint.. See note on Defendant’s offer to compromise,” 2 Silv. Sup. Ct. 392, 415, and cases' there collated; Stilwell v. Stilwell, 81 Hun, 392. It furthermore determined the action. Ho-issues thereafter remained to be tried (Bucking v. Hauselt, 9 Hun, 635), and the cause should have been stricken from the-trial calendar.

It was competent to the parties, however, to waive the effect of the judgment, and having proceeded to litigate the issues made by the pleadings, without objection on either part, such a waiver must be deemed • to have resulted. Heither party can, thereafter, for the purposes of an appeal,, be permitted to assume an attitude which is inconsistent with his position upon the trial. See “ Estoppel,” note on “ Inconsistent position in legal proceedings,” 1 Am. & Eng. Ency. of Law, 22, and cases there collated; Fay v. Muhlker, 1 Misc. Rep. 321, 323. Adhering to the rule stated, and regarding the action at the time of the trial alluded to as pending, and the issues as undetermined, consistently with the attitude of all the litigants,, it is clear that the defense of a former recovery was no.t available to the defendant because not pleaded. If the appearance of the parties and their consent to the trial of the issues be regarded as a new- action,.the result remains-unchanged: Hence, it was error to admit the judgment which was entered upon the defendant’s offer in evidence, and for such error the judgment should be reversed.

Judgment reversed, with costs of this appeal to the appellants. A new- trial is ordered, unless upon the objection of either party the court below shall strike the' cause from the trial calendar.

Daly, Oh. J., and Pryor, J., concurs.

Judgment .reversed, with costs, and new trial ordered, unless the court below upon objection of either party shall strike the ®ause from the calendar.  