
    FERRIS v. FISHER et al.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
    1. Res Judicata—Judgment by Default. A judgment in partition, though entered by default, is admissible as evidence in a subsequent,, like action, involving the same issue, between the same parties, concerning other property.
    2. Appeal—Objections -not Raised Below. Where, in an action of partition, the record of a prior, like action between the saíne parties has been admitted in evidence, an objection that final judgment was not entered in this prior action cannot be raised for the first time on appeal.
    Appeal from special term, Westchester county.
    Action of partition by Katharine C. Ferris against Mary C. D. Fisher and others. From an interlocutory judgment for plaintiff, defendants appeal. Affirmed.
    For decision in former action, see 19 N. Y. Supp. 139.
    Argued before BARNARD, P. J., and PRATT, J.
    Martin J. Keogh, for appellants.
    A former judgment in an action between the same parties, not being pleaded, is not competent as evidence. Derby v. Yale, 13 Hun, 277; Henderson v. Scott, 32 Hun, 412; Krekeler v. Ritter, 62 N. Y. 372; and Code Civil Proc. § 532.
    Wilson Brown, Jr., (Isaac N. Mills, of counsel,) for respondent.
    L. C. & W. P. Platt, for respondents W. R. Harris and others.
    W. P. Platt, guardian ad litem.
   PRATT, J.

This action is brought for the partition of certain lands formerly held by Elisa H. Fisher. The complaint sets up a will and codicil made by said Elisa, and avers they were executed by her solely by reason of undue influence, and while mentally incompetent to make a will. These allegations are denied by the answer. Upon the trial the plaintiffs were allowed to put in evidence the record of a former action in partition between the same parties, but concerning other property, in which it was determined that Mrs. Fisher, at the time she made the codicil now in question, was of unsound mind, and that' the codicil was therefore void. The testimony taken upon the first trial is not shown, and it appears from the record of that action that when the cause was called for trial the defendants sought a postponement, which was refused by the court; whereupon an inquest-was taken, the defendants not opposing further. The findings were in the form usual in partition, reciting the deterniinations of law and fact, establishing the rights of the parties, and directing a sale of the property. The appellants now claim that, admitting the record was error, a judgment by default is not evidence in a subsequent action, that the testimony upon which it was rendered should have been shown, and that there is no proof that final' judgment was entered upon the findings.

That the testimony is not shown upon which the first action was determined is clearly no objection to the admission of the record. The reason why a record of a former judgment is admitted as evidence is that parties may not be burdened with proving the facts a second time. If the testimony upon which a judgment went must again be produced, a principal benefit of the rule of res adjudicata would be lost. Nor is it any objection that the judgment was taken upon default. The inference to be drawn from a failure to prove a defense is that no defense exists. The plaintiff who brings a suit may reasonably expect to settle the facts in that action. If a defendant, by refusing to answer, could deprive the plaintiff of the benefits of the action, it would be apt to work injustice.

To the suggestion now made, that a final judgment is not shown to have been rendered in the first action, it may be answered that the objection is late. When the record was offered it seems to have been assumed by counsel and the court that judgment had been entered. The case recites that plaintiff put in evidence “judgment roll” in action No. 1; that the “judgment roll” was marked as an exhibit. Then follows the admission by counsel that “the judgment in action No. 1 was taken upon default, as appears from the judgment roll itself;” and at defendant’s request the court finds that “ the judgment ” in action No. 1 was taken by default. If we are to give language its ordinary significance, we must consider that the entry of" judgment was tacitly, if not expressly, conceded. Now we are asked to assume on appeal that no judgment has been entered. If defendants intended to require more proof that the final judgment had been entered, the attention of counsel and court should have been called to the supposed defect in evidence. If it be that the evidence is deficient in that respect, we think the defect was waived.

The appellants also object that the former judgment, not being pleaded, could not be admitted in evidence, and cite authorities that, where a former,adjudication is relied on as a “bar,” it must be pleaded, or it is not admissible. Had there been a previous determination between the parties of their rights in the property now in suit, that would be a “defense” or bar” to this action. Like other defenses, that would require to be pleaded. Like other defenses, if not pleaded, it could not, if objected to, be proved. In the present case defendants have not pleaded that any previous determination has been had of the rights of the parties in this property. On the contrary, it is admitted that the previous litigation concerned other property. The record was not offered in bar of this suit, but in its support. To plead evidence is contrary to the present rules. The plaintiff pleaded that the codicil in question was executed by the testator when of unsound mind, and was therefore void, and proved that allegation by producing the record wherein it had been so adjudged in a previous action between the parties. When received in evidence, it was conclusive.

Judgment affirmed, with costs.  