. The plaintiff, by his reply to the defendant’s supplemental answer, admitted the commencement of the action in the Justice’s Court by the plaintiff against the defendant for the return of certain personal property or the value thereof, as stated in the 1st paragraph-of the-supplemental answer, but did not admit that, portion thereof which . asserted “ which plaintiff claimed to have-owned, and that defendant had taken from plaintiff by virtue of the chattel mortgage'set out in -the complaint herein, without authority or- consent of the plaintiff.” He. admitted the 2d paragraph of the supplemental answer, .which set forth that the. defendant in the Justice’s Court alleged ' that lie-had. taken such property by virtue of the chattel mortgage given.', by -the plaintiff to the defendant, " and .expressly admits that the defendant’s right to take said- property was at-issue in the action -. *527in the Justice’s Court, and that a judgment was entered therein and by the written stipulation he admits that the mortgage in question in this action is the same mortgage that was introduced in evidence in the Justice’s Court, and the same mortgage under which the defendant claims he seized and advertised plaintiff’s property for sale; and in his bill of particulars he admits that the articles referred to in his complaint as having been wrongfully taken by the defendant, under and by virtue of the chattel mortgage, which he-claims to be usurious and void, together with “other goods and chattels,” are the same articles set out in his complaint in the action brought by him against the defendant in the'Justice’s Court, and which resulted in a judgment in favor of the defendant and against the plaintiff. It, therefore, plainly appears that the right to the possession of these same articles in question here has heretofore been tried between the same parties in the Justice’s Court; that the defendant there relied upon his right under the chattel mortgage to take such property, and the rightfulness of that claim must have necessarily been passed upon by that, court in determining the issue raised between the parties.
These admissions were matters of record in the case, and were conclusive upon the parties and the court, and thé court had no authority to disregard them. (Dale v. Gilbert, 128 N. Y. 625.)
They have been made a part of the judgment roll filed in the case, and are certified to us as part of the record upon which this appeal is to be heard, and we must so consider them:
There is no pretense but what the Justice’s Court had jurisdiction of the parties and of the subject-matter, and the judgment rendered is conclusive between the parties upon every question necessarily embraced in the judgment, or upon every question within the issues that could have been litigated. (Gollins v. Bennett, 46 N. Y. 490; Malloney v. Horan, 49 id. 111; Dunham v. Bower, 77 id. 76 ; Reich v. Cochran, 151 id. 122, 127; Griffin v. L. I. R. R. Co., 102 id. 449.)
It makes no difference whether the question as to whether the mortgage was or was not usurious was passed upon in the former action;. all questions as to the validity of the mortgage were fairly up when the defendant justified the taking of the property by asserting his. mortgage.
*528The- principal issue there,;as here, was whether the defendant’s taking of the property was or .was not wrongful, and that question has been passed upon.
When an action has "once been determined, and when, through lack of knowledge or by design, the plaintiff has neglected or failed to ■ properly present the facts in his cáse, or to assert the proper reply to his adversary’s defense or counterclaim, it would be intolerable to permit him to maintain another action for the same thing upon the plea that the fact's he should have asserted and proved to maintain his former action, were not passed upon in such action.
It appearing,'therefore, from-,the record before us that the- subject-matter of -this action has been litigated in a. former, action between the same parties, and a judgment therein "rendered which stands unreversed,' the judgment herein'appealed from should be reversed and a new trial ordered, costs to abide the event.
All concurred.
Judgment reversed and a new trial granted, costs to abide the event.