
    Edwin R. Holden et al., Resp’ts, v. John O’Donohue, Impl’d, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Former adjudication—When not a bab.
    _ In order to render a former judgment between the same parties conclusive as evidence, though not pleaded in bar, it must affirmatively appear that the precise question was raised and determined, and this the defendant must show.
    3. Same.
    In an action upon a note given by_ a firm, one of the defendants claimed that he was not a partner, and that in a former action upon a similar note between the same parties he was successful. The record was not produced, but a stipulation was made upon a motion to change venue, to the effect that on the former trial evidence was given to show that defendant was a partner of the firm, and had held himself out as such. Held, that this proof was not sufficient to show that the issues were the same, and that the judgment was not conclusive on the question of partnership.
    Appeal from a judgment entered in Onondaga county on the 24th June, 1889, upon the decision of the court, upon a trial before the court without a jury, at the Onondaga circuit, March, 1888.
    
      Sullivan & Morris, for app’lt; Goodelle & Nottingham, for resp’ts.
   Merwin, J.

-This action is upon fiv.e notes, made by the firm of “P. Burke & Co.,” of Rochester, one dated August 6,. 1881, for $779.52, and the others dated August 25, 1881, each for $1,297.62, payable at different dates, the latest being in six months. None of the defendants except the appellant defended. His defense was, that he was not a member of the firm of P. Burke & Co.

The court ordered judgment against all the defendants for the amount of the notes. In the decision the court finds that at the time the notes were given the appellant held himself out to the world and to the plaintiffs as a member of the firm; that the notes were given for iron sold and delivered to the defendants by the pilaintrffs at different times prior to the giving of the same, and that in purchasing the iron the appellant represented and held himself out to plaintiffs as being a member of the firm, and the plaintiffs so believed, and that the appellant himself drew and signed the firm name to the notes.

There is evidence in the case sufficient to sustain these findings. The appellant, however, claims that, in an action brought by the plaintiffs against the defendants in the municipal court of Rochester upon a similar note, judgment was rendered in favor of this appellant and against the plaintiffs, and that that judgment is conclusive upon the question. The judgment is not set up in the answer and the plaintiff, therefore, claims that at most it is but prima facie evidence. The weight of authority is, however, to the effect that, in a case like the present, the judgment, if directly upon the point in issue, would be conclusive as evidence, though not pleaded in bar. Miller v. White, 50 N. Y., 144; Krekeler v. Ritter, 62 id., 374; Burlingame v. Manderville, 7 N. Y. State Rep., 858; 1 Greenl. Ev., § 531. In order to give it such effect, it must appear affirmatively that the precise question was raised and determined, and this the defendant must show. Zoeller v. Riley, 100 N. Y., 107; Russell v. Place, 94 U. S., 606; Aiken v. Peck, 22 Vt., 260; Woodworth v. Seymour, 22 Hun, 245. The matter must not be left to uncertainty or to conjecture.

In the present case, the record itself was not offered. The date ■of the judgment does not appear. The evidence about it is in a stipulation given by the plaintiffs upon the denial of a motion to •change the venue. From that stipulation it appears “ that upon a note given by P. Burke & Co. for the sum of about $350, said plaintiffs brought an action in the municipal court of the city of Rochester, which said action was tried in said court; that on said trial evidence was given on the part of the plaintiffs tending to show:

First. That said defendant was in fact a partner of said firm of P. Burke & Co.
Second. That he had held himself out prior to the giving of the note to said plaintiffs as being a member of said firm; that in said action judgment was rendered on a verdict of a jury against said plaintiffs and in favor of said defendant for costs; said note for $350 was given at same time as last four notes mentioned in the complaint herein."

It nowhere appears what the issues were in that action. We ■cannot, therefore, judicially say that the question whether the appellant was a member of the firm, or held himself out as such to plaintiffs, was necessarily determined. The matter is left in uncertainty. The appellant has failed to show one of the elements necessary for him to show in order to make his defense avail.able.

But it may be suggested that upon the trial it was assumed that the same question was tried in the Rochester court. It does not appear that there was any such assumption so far as the plaintiffs were concerned. When the stipulation was offered in evidence it was intimated by the court that the judgment would not be considered conclusive. This was not excepted to. The case was adjourned for several days, apparently to give both parties opportunity to present further evidence. Upon the adjourned day there was no further discussion, or ruling, or evidence, as to the judgment.

Further evidence was given on the defense showing that the appellant was in fact not a member of the firm. At the close of the case there was no finding, or request to find, as to the judgment

We find nothing in the case to prevent the plaintiffs raising the question that the proof as to the judgment is not sufficient torn ake it conclusive.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  