
    JONES a. UNDERWOOD.
    
      Supreme Court, First District ;
    
      General Term, Sept., 1861.
    Former Adjudication.
    Where the defence interposed was a former judgment upon the merits, and it appeared that in the former action the plaintiff had applied for a discontinuance, and declined to give evidence of his demand,' and that the court had considered merely the defendants’ counter-claim ;—Held, that the plaintiff had a right to maintain the second action for his demand.
    Appeal from a judgment.
    This was an action to' recover one-third of the commissions received by the defendants on the sale of about four hundred railroad bonds. The plaintiff was the assignee of one Cockle. The answer denied any agreement to pay Cockle any share in such commissions, and, along with other matters of defence, set up, by way of counter-claim, a j udgment by the defendants against said Cockle for $722.99, in the Superior Court, and alleged that the demand existed at the time of the assignment, and belonged to the defendants in good faith before notice; and likewise set up said judgment in bar, alleging that Cockle, in May, 1854, commenced an action in the Superior Court for the same cause of action; that the defendants appeared and answered; that the action was tried on the merits, and judgment rendered for the defendants, which afterwards was docketed for the defendants for said sum, and which was in full force; and demanded that the complaint be dismissed with costs. The reply alleged that the judgment was not a just and legal set-off and counterclaim against plaintiff’s claim; and that the plaintiff therein never brought the action to trial, and no proceedings were had by him, or proofs presented by him, and no judgment rendered by the court upon the claim mentioned in the complaint in such action, but only for the counter-claim and set-off, and denied that the j udgment was a bar.
    The cause was tried before the Hon. William Mitchell, referee. At the trial, after the close of plaintiff’s case, the defendants offered in evidence the j udgment-roll in the suit of Cockle against the present defendants.
    The judgment, omitting the formal portions, was as follows: “ This action having been called on for trial, and the plaintiff appearing by E. E. Mount, Jr., his attorney, and the defendants by Bliss & Vail, their attorneys, and the parties waiving a jury, the plaintiff thereupon moved for leave to discontinue his suit, which said motion was denied by the court, and the plaintiff thereupon declined to give any evidence in his suit.
    “ And it appearing to this court that the defendants have in and by their answer set up .a counter-claim, to which the plaintiff has not replied, or denied; on motion of Bliss & Yail, attorneys for the defendants, it is hereby adjudged that the defendants, John A. Underwood and Henry A. Underwood, recover of John Cockle, plaintiff, their said counter-claim, to wit: the sum,” &c.
    The defendants’ counsel then moved for a nonsuit on the pleadings and evidence, both that on the part of the plaintiff, and also on the record of judgment on the part of the defendants, which judgment defendants’ counsel insisted was a bar to the present action, and stated the several grounds of his motion, but the motion was overruled, and the defendants excepted.
    The referee finally determined in favor of the plaintiff for $2458.78. From the judgment entered in conformity with the referee’s decision, the defendants appealed.
    
      William Bliss, for the appellants.
    —The judgment in the action of Cockle against the defendants in the Superior Court-, is a bar to the present action. (Eastmure a. Laws, 5 Bingham’s New Cases, 444 ; Le Guen a. Gouverneur, 1 Johns. Cas., 436 ; Castle a. Noyes, 14 N. Y. (4 Kern.), 329 ; see Outram a. Morewood, 3 East, 345.) In Eastmure a. Laws, Coltman, J., says: “ Outram a. Morewood decides that when the same fact has been put in issue in a former cause, the verdict in that cause is an estoppel in a second action ; here the same claim has been put in issue and has already been decided between the parties.” Erskixr, J., concurred. In the present action the claim of the plaintiff is at issue, upon the record of the former action, and a judgment was therein rendered for the defendants after a trial of the cause. 1. The suit in the Superior Court was for the same cause of action by the assignor of the plaintiff against the same defendants; it came- on regularly for trial; was tried by the court in lieu and stead of a jury, a jury trial being -waived by the parties, and a judgment was rendered' for the defendants against the then plaintiff, for so much damages and the costs of the action. 2. The- claim of the plaintiff was at issue therein. The trial and judgment were upon the merits. The defendants’ set-off was finally established, and adjudged to be true upon the trial, and whether upon the admission of the plaintiff, or direct testimony, can make no difference. (Dunckel a. Wiles, 1 Kern., 
      420.) A judgment in favor of a plaintiff upon a failure to answer, is as final and conclusive, and as much upon the merits, as if rendered after the sharpest controversy. 3. The plaintiff did not discontinue his action, nor dismiss his complaint, nor was such discontinuance or dismissal permitted or adjudged. (Cockle a. Underwood, 1 Abbotts’ Pr., 1 ; S. C., at general term, 3 Duer, 676 ; Seaboard & Roanoke R. R. Co. a. Ward, 1 Abbotts’ Pr., 46, recognizing and approving the decision in the last case; Averill a. Patterson, 10 How. Pr., 85.) Had the action been discontinued, or the • plaintiff hionsuited, both the plaintiff and the" cause would have been out of court. (Hope a. Acker, 7 Abbotts’ Pr., 308.) 4. If the plaintiff in that "action was dissatisfied with the ruling of the judge, he should have appealed. Its correctness cannot now be examined collaterally. 5. “It is true, if a person sues upon several and distinct causes of action, and submits only a part of them to a jury, he is not precluded from suing again for such distinct cause of action as was not passed upon. In that case, he was not bound originally to unite the different'causes of action, and therefore shall not be bound.” (Wheeler a. Van Houten, 12 Johns., 311 ; S. P., Seddon a. Tutop, 6 Term R., 607, where the defendants’ plea could not, of course, be maintained, for the recovery in the former action was not on the' same promises and undertakings.) But .where.there is only a single cause of action, the principle is inapplicable. (See supra ; Markham a. Middleton, 2 Strange, 1259.) 6. That the judgment is a bar, is evident from the nature of a plea of set-off (Eastmure a. Laws, 5 Bingham’s N. C., 444 ; Collins a. Collins, 2 Burr, 825 ; Burgess a. Tucker, 5 Johns., 105.) It is a plea in bar going to the merits. It confesses and avoids the demand alleged by the plaintiff. It prays that the defendants’ demand be set off or over against the plaintiff’s demand. The recovery is of the balance of such account, and of course is conclusive upon the existence and extent of the ¡plaintiff’s demand.' When a plea of set-off is pleaded, the complaint becomes a defence to the defendant’s plea; and if that defence fail from want of proof or otherwise, and judgment is rendered for the defendant, it is res adjudicata that the pleading by -which such defence is set up is not true, and that the cause of action therein alleged does not exist. (9 Johns., 232 ; 12 Ib., 347 ; 14 Ib., 377 ; 13 Ib., 187.) The statute prescribes the judgment to be rendered. (2 Rev. Stat., 353, §§ 21, 22.) Thus the whole merits are involved, and the plaintiff’s demand forms a constituent element of the judgment. It is only when a balance is found to be due from the plaintiff to the. defendant that judgment is to be rendered for him. As a matter of equity and justice, and of the public policy defined by the Code of Procedure, the defendants ought not to be twice vexed. (Code, §§ 149, 150, 258, 274 ; Cockle a. Underwood, 1 Abbotts' Pr., 1.)
    
      R. E. Mount, Jr., for the respondents.
    —The judgment in the Superior Court, in favor of Cockle,' is no bar to this action; because Cockle never prosecuted his action, and there was no trial upon the merits. The defendants in said action, by reason of their answer, became virtually plaintiffs for their counterclaim, and were entitled to judgment for the same, without trial,—no reply having been made, and the plaintiff having applied for a discontinuance. (Mason’s Executors a. Alston, 5 Seld., 28 ; Hadley a. Greene, 2 Cr. & Jer., 374 ; Seddon a. Tutop, 6 T. R., 607 ; Ravee a. Farmer, 4 Ib., 146 ; Davis a. Talcott, 14 Barb., 611 ; Doty a. Brown, 4 Comst., 71 ; Sweet a. Tuttle, 4 Kern., 465.)
   By the Court.

Whatever issues or questions in an action are adjudicated by a court, cannot again be the subjects of inquiry until the judgment is set aside by an appellate tribunal. Consequently such judgment can be set up as a bar to the same claim in another action. In the present case it appears, on the very face of the judgment, that the plaintiff’s demand was not passed upon by the court. It states expressly that the plaintiff applied for a discontinuance, and, when refused, declined to give any evidence; and the court merely considered the counterclaim of the defendant, who, in fact, then became the actor in the suit.

We think the plaintiff had a right to maintain this action for the demand, which he declined to submit for adjudication in the former action in the Superior Court.

Judgment affirmed, with costs. 
      
       Present, Clerkk, P. J,, Leonard and Ingraham, JJ.
     