Honsinger v. . Union Carriage Gear Co.

Cullen, J. Undoubtedly a judgment is conclusive not only of the issues actually litigated in the action, but also of any matter necessarily comprehended and involved therein, although the same was not litigated. Pray v. Hegeman (98 N. Y. 351) states this rule clearly. But the question remains, did the recovery by the defendant in the action brought by it *231 for the purchase price of the goods necessarily involve the proposition that there had been no breach of the warranty given by it? I submit that that question is authoritatively determined by the decisions in this state. In Cook v. Moseley (13 Wend. 277) the action was for the breach of a warranty on the sale of a horse. The defendant pleaded in bar a former recovery in his favor against the plaintiff in an action brought for the price of the horse. It was held by the old Supreme Court that the judgment in the first action was not a bar to the second. That was the case of a present sale. It was mooted for some time whether there was not a difference in the rights and remedies of the parties in the case of an executory contract of sale, and it was questioned whether the right to recover for a breach of the warranty survived an acceptance of the articles sold. This question, however, was put at rest by Day v. Pool (52 N. Y. 416), where it was held that a warranty on an executory contract of sale survived acceptance and payment of the purchase price, and that for a breach an action might be maintained by the vendee. The same argument was made there that is made now, that fulfillment of the warranty was an integral part of the contract, compliance with which was necessary to entitle the vendor to payment, and that hence acceptance of the goods was an admission that the vendor had performed the contract. The claim was overruled. The fact that the present plaintiff interposed in the first action a counterclaim for breach of the warranty, a counterclaim which he sought to withdraw and of which he gave no evidence, defaulting in appearance on the trial, gives the judgment recovered by the defendant no greater effect than otherwise would have been accorded to it. I concede that the notice of withdrawal was a nullity, and I also concede that a party has not the absolute right under all circumstances to withdraw a suit brought by him, and that the principle equally applies to a counterclaim. Doubtless the court may refuse to allow a suit to be discontinued where the discontinuance will prejudice the rights of the other party. But *232 suppose the court does refuse to allow a party to withdraw his action, the court cannot make him try his claim, and if he refuses to appear on the trial and the court dismisses his action, the effect is nothing more than a nonsuit. By section 974 of the Code the trial of a counterclaim is governed by the same rules as if the defendant had brought his affirmative action for the demand set up as a counterclaim. Therefore, the result of a failure to appear at trial and sustain a counterclaim is just the same as a failure to appear and sustain a cause of action. That a judgment on a nonsuit does not conclude the parties requires the citation of no authority. The judgment should be affirmed, with costs.