Was the judgment in the action of Knight v. Burwell a bar to the present action, it appearing from the record put in evidence on that trial that the present plaintiff’ pleaded, by way of defense, the same matter now used to constitute his present action, and which matter was proper as a defense; and it also appearing from the same record—the justice’s docket— that the defendant in that action did not appear upon the trial, and judgment was given upon the testimony of the plaintiff alone. The judgment in that case did not constitute a bar to the present action. The record in that case, put in evidence in this case, proves affirmatively that no evidence was given by the defendant therein in support of his answer setting up the defense of warranty. The defendant did not appear on the trial. The action *269was undefended. The only witness examined was the plaintiff; and it is not to be presumed that he gave any testimony touching the defense. The defense, therefore, was never submitted to the justice. A withdrawal of the answer by the defendant's counsel was quite unnecessary. In Curtis v. Groat, (6 John. 168,) evidence of the claim was given in the first action, and it was submitted to the jury. (See also Felter v. Mulliner, 2 John. 181; Young v. Overacker, Id. 191.)
In Brockway v. Kinney, (2 John. 210,) the first action was upon a note and an account, and evidence was given upon the claim, and a verdict was rendered for the amount of the note only. The second action was upon the account, and the plaintiff proved, by one of the jury that in the first action nothing was allowed for the lime. The plaintiff recovered, and the judgment was reversed upon the ground that the first judgment was a bar; the court remarking that the claim went to the j ury on the first trial, and took its chance with them. If they did not allow it for want of sufficient proof, or for any other cause, it was the plaintiff’s misfortune. In - Irwin v. Knox, (10 John. 365,) the item had been submitted to the jury, in the first suit, and was rejected for want of sufficient proof. The judgment was a bar. In Babcock v. Peck, 4 Denio, 292,) the question was decided upon demurrer. The defendant pleaded that the plaintiff, in a former suit, had set off the demand and the cause wás tried, &e. The plaintiff replied, denying that the alleged cause of action was heard and determined in the former case, as alleged by the plea. The court held the replication a good-answer to the plea.
It can hardly be necessary to pursue this question further. The authorities are, that when the case is tried and the claim is submitted to the jury or the court, it cannot, in another action, be litigated. The pleadings may preA"sent the claim, but if no testimony is given in support of it, and it is not submitted to the court or jury, it will not *270be barred, unless it is a claim which the party is bound to present and litigate in that suit; as, in some cases, a set off in a justice’s court. And whether the claim was liti- ‘ gated and submitted is a question which may be proved upon the trial of the second action. If the claim is embraced by the pleadings specifically, the presumption is that it was tried, and that it was submitted and passed upon. But the party alleging the contrary may prove that the claim was not litigated, and not submitted, but that the trial and verdict proceeded upon other grounds. If the record, as in this case, shows that the claim was not tried and submitted, no other proof is necessary. (See the opinion of brother Davis, in Royce v. Burt, 42 Barb. 663, et seq. and the eases there cited; Wood v. Jackson, 8 Wend. 9; Lawrence v. Hunt, 10 id. 80.)
[Erie General Term, May 4, 1868.Daniels, Marvin and Davis, Justices.]
The defendant’s counsel made some objections, upon the trial, to the admission of evidence, and has by his points renewed some of these objections here. I have examined them, and am not satisfied that any of them are well founded.
The judgment of the county court must be reversed, and that of the justice affirmed. •