
    JACOB LORILLARD, Respondent v. WILLIAM P. CLYDE, et al., Appellants.
    
      lies adjudicada—defense not withdrawn and not supported by testimony.
    
    Where the judgment roll in a prior action between the same parties is, prima facie, an adjudication against the defendant, on a defense set up by the answer in both actions, it is not competent for defendant, upon the admission of the judgment roll in evidence, in the action pending, to show, by witnesses that, in the former action, he had given no testimony in support of the defense in question, the said defense not having been withdrawn.
    If said defense in the prior action, were not withdrawn and not supported by the testimony, an adjudication must have been made competently against defendant.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided February 6, 1888.
    Appeal from judgment entered upon verdict of jury, and upon order denying motion for new trial made upon the minutes.
    Action to recover an instalment under contract by which defendants on their part, guaranteed and agreed to pay plaintiff, in each and every year of the term of seven years succeeding July 1, 1874, dividends of not less than seven per cent, upon the par value of the stock of a certain corporation, amounting to the sum of $150,000, subscribed and paid for by plaintiff.
    Further facts appear in the opinion.
    
      
      Boardman & Boardman, attorneys, and Benjamin F. Tracy of counsel, for appellants :
    I. The rule that an action brought to recover instalments falling due upon a contract must include all the instalments due at the time of bringing the action is elementary and so well settled that it is hardly necessary to cite authorities in support thereof. Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 Ib. 644; Bendernagle v. Cocks, 19 Ib. 207; Secor v. Sturges, 16 N. Y. 548.
    II. The judgment recovered in the action brought in this court is not an adjudication between these parties, if the several instalments do not constitute one entire cause of action. It is true that in that action the defendants’ answer set up another action pending in the City Court of Brooklyn to recover for the same identical cause of action, and that notwithstanding this plea, the plaintiff had judgment. But no such defense was presented to the court upon the trial. The defendant waived that defense in that action, gave no proof in support of it, and it was not passed upon by the court. Under such circumstances the judgment is not res adjudícala.
    
    III. The defendant had a right to prove on the trial of this action that in the former action pending in this court no proof was given on the trial in support of his plea in abatement, and that that defense was not submitted to the court for its adjudication, and he had a right to prove this by parol. Lorillard v. Clyde, 102 N. Y. 65 ; Doty v. Brown, 4 Ib. 71; Wood v. Jackson, 8 Wend. 9; Lawrence v. Hunt, 10 Ib. 80; Dunckel v. Wiles, 1 Kern. 420.
    
      Varnum & Harrison, attorneys, and Asa Bird Gardiner and Richard L. Sweezy of counsel, for respondent:
    It has been conclusively adjudicated by the prior judgments in this court, and in the City Court of Brooklyn, that as between these parties, and upon this contract, successive actions may be brought, and successive recoveries had, although for instalments all due when the action for the first instalment was brought. Lorillard v. Clyde, 102 N. Y. 59. A judgment is conclusive in all subsequent litigations between the parties thereto, -upon all matters of law or fact presented by the pleadings and litigated on the trial, or which are involved in the judgment, whether actually litigated or not. Tuska v. O’Brien, 68 N. Y. 446; Marcellus v. Countryman, 65 Barb. 201; Dunham v. Bower, 77 N. Y. 76 ; Smith v. Heimstreet, 54 Ib. 644. Defendants claim that the moneys sued for in this action, and also in the two prior actions, being all due when the former action was commenced in this court, in November, 1881, constituted but a single cause of action, and should all have been included in said prior action in this court. But "they raised this defense in both the prior actions, and the plaintiff, nevertheless, recovered in both of them. It has, therefore, been twice adjudicated that this is not a good defense; that these several claims did not constitute a single and indivisible ‘cause of action, but that separate actions could be brought for the same. Lorillard v. Clyde, supra.
    
   Per Curiam.

In the trial below, two judgment rolls were offered in evidence by the plaintiff. It was then, and on the argument of this appeal, assumed that, prima facie, the judgments were adjudications against the defendants on an issue made by the answer in this action, of the same kind as made in the answers in the former actions.

To show that actually the adjudications were not made in the former actions, the defendants asked of a witness questions, framed to show that in the former actions the defendant had given'no testimony in support of the defenses. These questions were properly excluded, because,' although testimony might not have been given, the defenses were not withdrawn. If not withdrawn and they were not supported by testimony, adjudications must have been made competently against the defendants.

Judgment and order affirmed with costs.  