Krekeler v. . Ritter

Allen, J. The record of the Superior Court was not offered or received in evidence in bar of the action, but merely as evidence of the fact in issue. Had it been offered as constituting a bar, or as an estoppel to the action, it would have been inadmissible, not having been pleaded as a defence. (Brazill v. Isham, 2 Ker., 9, per Denio, J.; Denny v. Smith, 18 N. Y., 567.) But as evidence of a fact in issue it was competent although not pleaded like any other evidence, whether documentary or oral. A party is never required to disclose his evidence by his pleadings. The evidence was competent to disprove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact, in an action between the same parties. ( Wright v. Butler, 6 Wend., 284; Lawrence v. Hunt, 10 id., 81; Embury v. Conner, 3 Comst., 511; Gardner v. Buckbee, 3 Cow., 120.) The court properly held that “ the matter adjudicated between the parties in another action might be given in evidence.” The judgment could not be impeached collaterally, nor could the same facts be retried between thé same parties. The offer of the plaintiff *375 was in effect to retry the issues. Judgments may be impeached in equity for fraud, but for no other reason. (Favoue v. Fanning, 4 J. Oh., 199.) The remedy of the plaintiff was by application for a retrial in the Superior Court, or for other relief if the judgment had been procured by false or mistaken testimony, and. other evidence had been discovered by which the truth could be established. The court had jurisdiction to grant an extra allowance to the defendant, as in a difficult or extraordinary case, and the amount in controversy was adjudged at $3,100, which probably included interest upon the mortgage. The allowance was liberal, but the-trial court was better informed than we can be of the character and course of the litigation, and the statute very properly makes the decision of that court final when the power conferred by statute is not exceeded. We cannot review the exercise of the discretion of the court of original jurisdiction. (Code § 309; Southwick v. Southwick, 49 N. Y., 510.) The judgment must be affirmed. All concur. Judgment affirmed.