Barber v. Rutherford , 10 Misc. 784 ( 1894 )

Ehrlich, Oh. J.'

The action is upon an undertaking executed by the defendants.

The answer denies all the allegations of the complaint except that the defendants had executed a certain undertaking of the general description and character referred to in the complaint.

The proceedings in the action in which the undertaking was given were all denied, so that the affirmative of the issue was upon the plaintiffs and, it was properly accorded to them.

The defense relied upon a counterclaim.

But it appeared by the documentary evidence offered by the plaintiffs that the same matters pleaded had been adjudicated adversely to the defendants’ assignors in a litigation to which they were privies, and they were, therefore, precluded thereby.

Under these circumstances the, trial judge properly directed a verdict in favor of the plaintiffs, and as there are no errors requiring a new trial, the judgment must be affirmed, with costs.

Newbubgeb, J., concurs.

Judgment affirmed, with costs.