Paine v. Schenectady Insurance Co.

This is an action of assumpsit to which the defendant pleads in bar a former judgment recovered in the Supreme Court of the State of New York. The plaintiff replies that the judgment has been appealed from by him, and the suit is still pending in the court. The defendant demurs to the replication.

The defendant contends that by the law of New York an appeal does not vacate the judgment appealed from, but leaves it, until annulled or reversed, conclusive upon the parties.

Two questions arise upon the demurrers: —

1. The first question is, whether we can take judicial cognizance of the law of New York, or must presume it to be the same as ours until it is shown by averment and proof to be different. The decisions upon this point are conflicting, but we think the decision of the Supreme Court of Pennsylvania, in TheState of Ohio v. Hinchman, 27 Pa. St. 479, rests upon the better reason. The court there held that, when the judgment impleaded is the judgment of a sister state, the court will notice ex officio the law of the state in which it was rendered. The reason given for this is, that, in such a case, the court acts under the Constitution and laws of the United States, which require that the judgment shall have in every state the same faith and credit which it has in the state where it was originally rendered. In such a case; it was said, the decision of the state court is reexaminable in the Supreme Court of the United States, which will, without averment or proof, take cognizance of the law of the state in which the record originates. "It would be a very imperfect and discordant administration," it was further said, "for the court of original jurisdiction to adopt one rule of decision, while the court of final resort was governed by another; and hence it follows, that in questions of this sort we should take notice of the local laws of a sister state in the *Page 416 same manner the Supreme Court of the United States would do on a writ of error to our judgment." See also Baxley v. Linah, 16 Pa. St. 241; Rae v. Hulbert, 17 Ill. 572, 578; Butcher v.The Bank of Brownsville, 2 Kan. 70; 2 Am. Lead. Cas. 648 etseq. We think the reasoning is sound, and that it is not satisfactorily met by courts which adopt a different view. Rape v. Heaton, 9 Wis. 328, 341.

2. The second question relates to the conclusiveness of the judgment. We find, as claimed by the defendant, that by the law of New York an appeal, though it may stay the execution when proper security is given, does not affect the conclusiveness of the judgment so long as it remains unreversed. A judgment so appealed from is a valid bar to an action involving the same controversy. Sage v. Harpending, 49 Barb. S.C. 166; Harris v. Hammond, 18 How. Pr. 123; Rathbone v. Morris, 9 Ab. Pr. 213; Freeman on Judgments, § 328. If the judgment would be a good bar to this action in New York, it is entitled to have the same effect in this state. Mills v. Duryee, 7 Cranch, 481;McElmoyle v. Cohen, 13 Pet. 312; Jacquette v. Hugunon, 2 McLean, 129. The case of Bank of North America v. Wheeler,28 Conn. 433, is a case exactly in point. After the commencement of that case in Connecticut, a judgment was recovered for the same cause of action in New York, and it was held that the judgment, notwithstanding it had been appealed from, was a good bar to the suit in Connecticut; it being found that, by the law of New York, the appeal operated only as a proceeding in error and did not vacate the judgment. We think, therefore that the demurrer to the first replication must be sustained,

We will add, however, as matter of practice, that we think the pendency of the appeal in New York may be a good ground for delaying judgment here until the appeal is disposed of; for otherwise we may give the judgment here a permanently conclusive effect, whereas in New York, if the appeal is successful, it will be conclusive only for a short time.

There are two other replications which are demurred to; but we think they raise issues of fact, which the plaintiff is entitled to have tried. The demurrers to them are, therefore, overruled.