Lorillard v. Clyde — 13 N.Y. St. Rep. 277

Majority

p. 277

Jacob Lorillard, Resp’t, v. William P. Clyde et al., App’lts.

(New York Superior Court, General Term,

Filed February 6, 1888,)

Headnote

Evidence—Testimony to explain former judgment not Competent-Adjudications PRESUMED TO BE COMPETENTLY MADE.

On the trial of an action two judgment rolls were offered in evidence by the plaintiff. 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. He’d, that it was not competent to show that in the former actions the defendants had given no testimony in support of the defenses; that, although testimony might not have been given, the defenses were not withdrawn, and the adjudications must have been competently made against the defendants.

Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial made upon the minutes.

Benjamin F. Tracy, for app’lts; Asa Bird Gardiner and Richard L. Sweezy, for resp’t.

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.

The questions were properly excluded because, although testimony might not have been given, the defenses were not withdrawn. If not withdrawn, and were not supported by the testimony, adjudications must have been made competently against the defendants.

Judgment and order affirmed, with costs.