The policy of the law is to confine litigation between the same-parties over the same subject-matter to one action, and to hold the decision in that conclusive as to the rights of the parties ; and pursuant to that policy it is held that “ the judgment or decree of a. *77court possessing competent jurisdiction, is, as a general rule, final not ■only as to the subject-matter thereby actually determined, but as to ■every other matter which the parties might litigate in the cause, and which they might have had decided.” (Embury v. Conner, 3 N. Y. 511, 522; Dunham v. Bower, 77 id. 76 ; Dawley v. Brown, 79 id. 390; Pray v. Hegeman, 98 id. 351; Reich v. Cochran, 151 id. 122.)
Or, as otherwise stated, “ the rule is well settled that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation within the purview of the original action, either as matter of claim or of defense.” (Griffin v. Long Island R. R. Co., 102 N. Y. 449, 452.)
And in still another form, “ the judgment of a court of competent jurisdiction directly upon the point is as a plea, a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another action or court.” (Stowell v. Chamberlain, 60 N. Y. 272, 276.)
The subject-matter of the case at bar and the subject-matter of the litigation in the case of Tompkins v. Fritz is the same; that is, the same right of way is involved. The only question to be determined in each was the right of the plaintiff to use a particular strip ■of land as a private way to reach the public highway.
No objection was made to the reception of the judgment roll in ■evidence; it was pertinent and material to the fact in issue; that is, the plaintiff’s right to use the land in question.
A former judgment is competent evidence of a fact in issue, although not pleaded in bar (Krekeler v. Ritter, 62 N. Y. 372); and when receivable in evidence it is conclusive evidence, not to be contradicted of any fact which was, or might have been, determined in the action in which it was rendered. (Foulke v. Thalmessinger, 1 App. Div. 598.)
The fact that in this case the plaintiff only claims an easement in the land, while in his answer in the other case he claimed the title to and to be the owner of it, and that the question as to whether he had an easement was not made an issue by the pleadings, and was probably not litigated upon the trial, makes no difference.
*78It is not necessary to the conclusiveness of the former judgment that issue should have been taken upon the precise point controverted in the second action. (Pray v. Hegeman, 98 N. Y. 351, 358; Campbell Printing Press & M. Co. v. Walker, 114 id. 7, 12.)
The rule is that the judgment is a bar to a right of recovery where a party has had his day in court, with full opportunity to be heard, and to assert and protect his rights, although he has failed to do so. (Reich v. Cochran, 151 N. Y. 122.)
Claim and proof of an easement, or a right of way by necessity, such as asserted here, would have been a defense in the former action, and if the plaintiff failed to assert it then, he should not be permitted to maintain another action to assert it. The fact that the forms of action are different is of no consequence. It is the principle that is involved that the law considers. And if the parties and the subject-matter are the same one action must determine the controversy.
And a party cannot be permitted to withhold matter as a defense in one action, and when beaten in that upon one defense, commence an action upon the same matter he refused to assert as a defense in the first.
This is illustrated in Nemetty v. Naylor (100 N. Y. 562) which was an action brought to recover damages for an alleged breach of contract to alter over certain premises and fit them for a school, and to execute to plaintiff a lease thereof for a term of years.
The plaintiff went into possession of a dwelling house belonging to the defendants under a written lease for one year from May 1, 1876, at a rental of $1,000, payable monthly in advance. The rent for May and June was paid. The plaintiff gave evidence tending to show certain agreements between herself and defendant, whereby the landlords were to make extensive repairs and alterations to fit the premises for a school, the work to be finished by October first, the tenants to pay no rent until their completion, and to have the premises for ten years at an increased rent, receiving credit for the rent paid for May and June, and the costs of the repairs done by her.
It appeared that in December, 1876, summary proceedings were commenced in behalf of Naylor, as landlord, against the plaintiff, to dispossess her for non-payment of rent, reserved in the written lease. Judgment was rendered therein against the plaintiff, which defendants set up as a bar to this action.
*79The court said (p. 567): “ Although it may be conceded that the plaintiff would not be bound to recoup the claims which are the subject of this action, if an action had been brought by the defendants to recover rent for the demised premises against the plaintiff, and a, judgment for such rent would be no bar to the plaintiff’s action for damages, yet it cannot be denied, we think, that the adjudication in the summary ¡iroceedings was a final determination as to the rights of the parties to the premises under the lease or contract existing-between them. Either the plaintiff or the defendants had a right to the possession of the premises. If, under any agreement, the plaintiff had such a right, she could not be dispossessed or removed. Any agreement which authorized her to keep possession was a perfect defense to the summary proceedings for her removal, and if such an agreement existed no judgment of removal was authorized. Such agreement not having been set up or proved the plaintiff is not in a position to claim she had a right to the possession of the premises. She has had her day in court, with full opportunity to be heard and to assert and protect her rights, and, having failed to do so at the proper time, the record' of the proceedings upon which she might have done so is a bar to her right to recover in this action. The judgment is conclusive that no other tenancy existed than that which was claimed in the proceedings had, and also as to the rent due and unpaid and the holding over after default in its payment.”
As the judgment in that case was held to be conclusive that no other tenancy existed than that which was claimed in the prior summary proceedings, so here the former judgment should be held conclusive that the plaintiff has no other right to the use or occupation of the land in question than the right which was litigated in the former action.
For these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Parker, P. J., and Merwin, J., dissenting.
Judgment reversed, new trial granted, costs to-abide the event.