Sullivan v. George Ringler & Co. — 69 A.D. 388

Majority

p. 388

John J. Sullivan, as Surviving Trustee under the Last Will and Testament of John J. Worden, Deceased, Respondent, v. George Ringler & Company, Appellant.

(Action No. 4.)

Headnote

A judgment, appealed from, is still res adjudicat'a.

A judgment between the same parties on the same subject-matter is res adjudícala, notwithstanding that an appeal from such judgment has been taken therefrom and an undertaking given to stay execution thereon.

Appeal by the defendant, George. Riñgler & Company, from a judgment of the Supreme Court.in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of Hay, 1901, upon the decision of the court rendered aítér a trial before the court without a jury at the Kings County Trial Term, a jury having been waived.

J. Aspinwall Hodge, Jh, for the appellant.-

J. J. Sullivan \De Witt Bailey with him on the brief], for the respondent-.

The only question involved in this appeal is whether a. judgment between the same parties-on the same subject-matter is res adjudícala after an appeal from the judgment has been taken and an undertaking given to stay execution.

This question must be decidéd in the affirmative, on the authority of Parkhurst v. Berdell ( 110 N. Y. 386 ), where (at p. 392) it was said: “ As it appears to have been material to establish in this action some of the matters adjudicated in that in favor' of -Hrs. Parkhurst, it was competent for her to establish them by the judgment-roll introduced in evidence. But that judgment was rendered in Septeniber, 1878, and before the trial of this action an appeal had been taken to the General Term. That is all that appeared upon the trial of this action. But the appeal did not suspend the operation of the - judgment as an estoppel.” (See, also, similar

p. 389

doctrine declared in Stevens v. Stevens, 69 Hun, 332 , 336, and Sage v. Harpending, 49 Barb. 174 .)

The .judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

Cases cited

Parkhurst v. Berdell 110 N. Y. 386 N.Y. 1888-10-02 p. 388