¶1If the defendants, under all the facts of the case, were entitled to use the record of the former trial in evidence, and to insist upon it, notwithstanding the stipulation between the parties, it must undoubtedly be held prima facie to bar the present action. The precise matter which forms the subject of this action, was, in the former action, set up in the answer of this plaintiff, to the complaint therein, both by way of recoupment, to prevent any recovery by the plaintiff therein, and as a counter-claim for the purpose of recovering damages, by the defendant, as affirmative relief. Issue was taken by publication, so that this identical matter was then in issue, and might properly have been tried and determined.
¶2The general rule unquestionably is, that the former adjudication is a bar not only as to all matters actually tried, but as to all matters which might have been tried under the issues formed by the pleadings, also. (Le Guen v. Gouver*394neur, 1 John. Cas. 436. Canfield v. Monger, 12 John. 347. Davis v. Tallcott, 12 N. Y. Rep. 184.) Many other cases might be cited, but the general rule is too well established to need the citation of numerous decisions in its support.
¶3The record here, shows that neither the counter-claim nor the matter by way of recoupment was litigated in the former action, as the deferidant therein, the present plaintiff, did not appear upon the trial, but suffered judgment to be taken against him by default, on the plaintiff’s evidence. But this makes no difference, within the rule, prim,a facie. The matter was directly in issue upon the pleadings, and the neglect of the defendant in the action to appear and litigate it does not save it from the bar. It is to be observed, however, that the case there tried was not like that of Davis v. Tallcott, (supra,) where the contrary of the matter set up by way-of defense was necessarily established by the plaintiff in making out his cause of action, under the allegations in his complaint. In that case, the action was upon contract, and the plaintiff averred full performance on his part, and alleged a breach by the defendant. The defendant denied the performance alleged by the plaintiff. And it was held by the Court of Appeals that the plaintiff could not have recovered without, proving complete performance on his part, and therefore the matter set up by way of recoupment and counter-claim were barred by the former trial, whether withdrawn by the defendant at the trial or not. Here the complaint in the former action was for work and labor and materials furnished' generally, and the matters set up by way of defense and counter-claim were not necessarily involved in the proof necessary to make out the plaintiff’s cause of action. The matter set up by. way of defense, not being necessary, or at all involved, as part of the plaintiff’s evidence, prima facie, it has not been tried, or passed upon, and would not be barred, except for the evidence furnished by the record, that it was expressly put in 'issue by the answer and reply. But it *395appears by the stipulation signed by the attorneys for the respective parties in the former action, that the subject matter of the present action was expressly withdrawn from that action before trial, and upon an agreement that it should be “ without prejudice to the defendant’s right to maintain an action thereon against the plaintiffs, and the same is not to be affected by the future litigation of this action.” By the express terms of the stipulation, the counter-claim so withdrawn was not to be affected by the subsequent trial and judgment in the action, and the plaintiff was not to be prejudiced thereby in his right to maintain an action against these defendants thereon. It is entirely clear that a cause of action may be withdrawn at or before the trial, and so may a-distinct matter of defense, which is not necessarily a part of the plaintiffs’ case to overcome, and establish, in order to' make out his right to recover. And as to matters so waived or withdrawn, the trial and judgment are no bar. (Snider v. Croy, 2 John. 227. Seddon v. Tutop, 6 Term R. 607. Kitchen v. Campbell, 3 Wils, 304. Brockway Kinney, 2 John: 210. Louw v. Davis, 13 id. 227.)
¶4The stipulation' was offered in evidence to answer and overcome the prima facie evidence of the record of the former trial. It was objected to as evidence and excluded, but on what ground does .not appear. The plaintiff was clearly entitled to this evidence for the purpose of showing that his present cause of action was not in fact tried or determined in the former action, but was, on the contrary, waived and withdrawn by the express consent and agreement of the other party. That the prima facie evidence afforded by the record may be controverted and disproved by parol evidence of what took place upon the trial in such a case, is abundantly established, as will be seen by the numerous authorities cited in Cowen & Hill’s Notes, 838, 1839, where the whole subject is thoroughly discussed and examined. The evidence of the stipulation was therefore *396improperly rejected. It would have shown that the counterclaim there, which is the subject of the present action, taken in connection with the record, was not, and could not have been, barred by that trial and judgment. It is now said that the matter was only withdrawn, so far as it was interposed in the former action, as a counter-claim ; and not so far as it was interposed by way of recoupment, merely, to prevent a recovery by the plaintiff, and that prima facie it was litigated to that extent, notwithstanding the withdrawal of the counter-claim as such, and that the evidence afforded by the record would not have been overcome by the evidence of the stipulation, but would still remain sufficient evidence to constitute a bar. It is true, that if the matter had been in fact used in that way, it would constitute a bar to this action. But, as has been before remarked, the record itself shows that •the present plaintiff did not appear, at all, upon' that trial, and no evidence was given in his behalf; and this, in connection with the stipulation, would show • conclusively that the whole matter was taken out of that case, and was not tried or passed upon in any form, or for any purpose.
¶5But even if the rule were otherwise, and the judgment' record was held to be conclusive evidence that the matters were there tried and determined, contrary to the actual fact, I should be prepared to hold, in such a case as this, that the defendants were estopped from using the record as evidence in bar, in the face of their written stipulation. It would operate as a gross fraud upon that agreement, to allow them to do so, after having escaped the peril of a defense to their action, by agreeing solemnly that the party should not be prejudiced by the trial and judgment if he would forbear to defend. The very object of estoppel is to prevent fraud. On either ground the evidence offered was erroneously excluded, and a new trial must be granted, with costs to abide the event.
¶6B. D. Smith, J. concurred.
¶7J. C. Smith, J. dissented from so much of the opinion, as holds that the defendants are estopped by their stipulation from using the record of the former judgment in bar, but concurred in the residue.
¶8New trial granted.
¶9E. D. Smith Johnson and J. C. Smith, Justices.]