William Halladay, Respondent, v. Bryant Kolner, Appellant. (Action No. 1.); William Halladay et al., Doing Business under the Name of Halladay Bros., Respondents, v. Bryant Kolner, Appellant. (Action No. 2.)

(January 11, 1950.) William Halladay, Respondent, v. Bryant Kolner, Appellant. (Action No. 1.) William Halladay et al., Doing Business under the Name of Halladay Bros., Respondents, v. Bryant Kolner, Appellant. (Action No. 2.) [MAJORITY] Memorandum: The defendant-appellant in these two actions urges that a judgment in a prior action, in which it was adjudged that the respondents-plaintiffs here were guilty of negligence which caused the accident, is a bar to any recovery by the respondents in these actions. Appellant has not pleaded the prior judgment. The general rule laid down in Krekeler v. Ritter (62 N. Y. 372, 374) and consistently followed by the courts is that when a prior judgment is offered in evidence “ as constituting a bar, or as an estoppel to the action ”, it cannot be received unless it had been pleaded as a defense. We do not think the decision in Levine V. Behn (282 N. Y. 120) abrogated that rule. Under the pleadings here the defense of res judicata is not available to the appellant. We pass on no other question. All concur. (The order appealed from denies a motion for. summary judgment dismissing the complaint in the two actions.) Present — Taylor, P. J., MeCurn, Love, Kimball and Piper, JJ.