#### FURLONG v. BANTA et al.

(Supreme Court, General Term, Third Department.

July 14, 1894.)

Judgment—Res Judicata.

In an action by a mother to recover for the loss of services of her infant son, a judgment for plaintiff in a prior action brought by her, as guardian *986ad litem of the son, to recover on his behalf for the same injuries, is not admissible to show negligence of defendant and freedom of the son from contributory negligence.

Appeal from circuit court, Montgomery county.

Action by Bridget Furlong against Justus L. Banta and George S. Banta.- There was a judgment in favor of defendants, and plaintiff appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Westbrook, Burke & Hover (Z. S. Westbrook, of counsel), for appellant.

Chas. S. Nisbet, for respondents.

HERRICK, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendants. The appellant (the mother of one Joseph M. Furlong, an infant) brought an action against the defendants to recover damages for the loss of the services of her infant son by reason of injuries received by him while in the employ of the defendants, which injuries, it is alleged, occurred through the negligence of defendants. Upon the trial it appeared that the appellant, as guardian ad litem for her said infant son, had recovered a judgment against the defendants, in behalf of her said son, for the same injuries, suffered through the same accident. Upon the trial in this action, appellant’s counsel offered in evidence the judgment roll in the former action for the purpose of showing that the defendants were guilty of negligence in causing the injury to Joseph M. Furlong, and also that he was not guilty of contributory negligence. The court refused to receive the judgment roll in evidence, to which the appellant excepted; and the principal question argued before us upon this appeal was the ruling of the court in refusing to admit such judgment roll in evidence upon the trial.

To render a judgment roll admissible in evidence for the purpose of concluding the parties as to the facts litigated in the former action, it is not sufficient that the facts or issue should be the same in both actions. In addition thereto, the parties in the second action must have been parties in the first action, or their privies, and the judgment therein conclusive as to both parties; the judgment being received in evidence on the principle of estoppel, to which it is essential that it should be mutual. Booth v. Powers, 56 N. Y. 22. If the former action, in which the appellant was the party, as guardian ad litem, had resulted in a judgment against her, and in favor of the present defendants, I do not think that it would have prevented her maintaining an action in her own behalf for the loss of services of her son; “for the rule is that a former judgment concludes the party only in the character in which he was sued, and therefore a judgment for or against an executor, administrator, assignee, or trustee, as such, presumptively does not preclude him, in a different cause of action, affecting him personally, from disputing the findings or judgment, though the *987same questions are involved.” Collins v. Hydorn, 135 N. Y. 320, 32 N. E. 69. If the appellant would not be bound by a judgment against her in the former action, it does not seem to me that the defendants are bound in this action by the judgment against them in the said former action. The estoppel is not mutual. I do not undertake, at this time, to say that a judgment roll like the one in question is not admissible in evidence for any purpose between parties situated in relation thereto, as are the parties to this action, but simply pass upon its admissibility in evidence for the purposes it Was offered for upon the trial in this action.

The exceptions to the rejection of the testimony of the witness Liddell I do not think can be sustained upon this appeal, for the reason that all the evidence in the case is not before us, and there is therefore nothing by which we are able to say that the exclusion of such evidence was harmful to the appellant. There may have been an abundance of other evidence in the case upon the same subject, and, if for no other reason, we should refuse to reverse the judgment for the error complained of in that behalf. The judgment should be affirmed, with costs. All concur.