¶1 As a general rule, the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties upon the same question, in another court.
¶2 That was the rule laid down in the Duchess of Kingston’s case (20 Howell St. Tr., p. 538), and is not questioned in any of the authorities cited by the counsel of the plaintiff, nor by the learned justice delivering the dissenting opinion in this case.
¶3 *115 They, however, contend and insist that it applies only to cases where there has been an issue, and that in the language of the plaintiff’s counsel: “ There must be a judicial decision upon an unconfessed right of action.”
¶4 No authority to sustain that distinction or exception has been cited; but the decisions in Baron v. Abeel (3 John. Rep., p. 481), and in White v. Merritt (3 Selden, p. 352), referred to in the opinion of Bockes, J., at Special Term, and of Rosekrans, J., at General Term, establish the contrary, and show that the rule also applies to a judgment by default. In such a case the right of action (there being no denial thereof) is by implication admitted, and when there is in the answer of the defendant an express and direct admission by him of the plaintiff’s right to recover, and a consent to the entry of a judgment for a certain amount, it is an admission on the record of all the facts which the plaintiff would have been bound to prove on a denial of the cause of action alleged by him in his complaint. This principle is fully asserted and declared by Welles, J., in White v. Merritt (supra), and in his consideration in that case of the effect of a judgment by default, he said: “¡No averment is to be admitted to contradict a judgment or to dispute any legitimate inference deducible therefrom; ” and Gardiner, Ch. J., in Davis v. Tallcot (3 Kernan, p. 184), in considering the effect of an admission made by the defendants on the trial of an action before a referee-that “ they were indebted to the plaintiff therein for the cause mentioned in the complaint,” where the defendant had interposed an answer denying the plaintiff’s right of action, said: “ As the cause of action and the indebtedness of the defendant were by the complaint made dependent on a full performance of the contract by the parties who instituted the suit, the confession of the defendant was equivalent to an admission on the record to that effect, and the report of the referee, followed by the judgment of the court, consequently estopped the parties to the suit from ever after questioning that fact in any controversy upon the same agreement.” It was incumbent on the defendant, under the complaint in the *116 action by him for the value of his services, to establish that he had performed the duty which the law imposed on him in the treatment of the plaintiff’s arm, and it is conceded by the learned justice in the dissenting opinion, “that in a-suit by a physician for his services, if the defendant in such suit neglects to disprove the allegation of performance and a recovery passes in favor of the plaintiff, performance of the contract is implied.”
¶5 An answer expressly admitting such performance, and thus making the admission a part of the record, cannot on any principle be considered less conclusive as to the fact so admitted than the implication arising from a judgment after a denial of it by the answer, and there is no reason why it should not have the same effect as a defence. ¡Nor is it an objection that the defence was interposed after the cause was at issue. Conceding that the effect of defeating the plaintiffs action would have established the defendant’s right to recover for his services, it would not have fixed their value, and there was no rule of law that required him to await the result of that action, before he could take proceedings to recover such value.
¶6 I will only add in conclusion that the views and arguments presented with great ability and confidence in the dissenting opinion in this case, adverse to the decision therein, and the dissent of another learned justice to the decision in Bellinger v. Carigue (31 Barb. Sup. C. Rep., p. 534), to the same effect as that now under review, and which was relied on in support thereof at Special Term seemed to make it proper to consider the question more fully than I should otherwise have deemed necessary. Such consideration has led me to concur in the able and well considered opinions of the learned justices delivered in support of those decisions, and to a conclusion adverse to the views urged against them. It follows that the judgment appealed from should be affirmed with costs.
¶7 All the judges concurring for affirmance except Daniels, J., who thought the question of malpractice not necessarily in issue before the justice.
¶8 Judgment affirmed.