McGown, J. The action is brought to recover the sum of $1,000, and interest, the amount of a promissory note bearing date on the 24th day of August, 1885, made by Samuel B. Adler, the defendant herein, to the order of James R. Watts. The note became due three months after date, November 27, 1885. Watts, the payee, indorsed the note, before it became due, in November, 1885, and delivered it to the plaintiff in October, 1887.
The note was given to the payee for a valuable consideration, and Watts was the owner and holder of the note until October, 1887, when he transferred it to the plaintiff herein.
Having received the nóte after its maturity, the plaintiff is chargeable with notice of all the equities existing between the original parties to the note; and plaintiff stands in the same position, as to any defense, that Watts, the payee of the note, would have stood in if he (Watts) had sued Adler; that is, any defense that Adler could have set up against Watts. He stands in the position of an assignee; and Watts, the payee, and the plaintiff are privies.
Bank v. Bank, 89 N. Y. 412; Bissick v. McKenzie, 4 Daly, 265. In the action brought in the superior court by Adler, the maker, against Watts, the payee, (plaintiff’s Exhibit No. 2,) the note in question was in part the subject-matter of the action.
The plaintiff alleging in his complaint that the note was given by him to defendant for a special purpose,—to be discounted for plaintiff; that defendant had had the note discounted, received the proceeds, and refused to pay over the same to plaintiff, but that defendant has converted the same to his own use, and demands judgment for amount claimed, and interest.
Defendant, in his answer, denying each of these allegations; and alleging that the two notes were given to him to be applied to an indebtedness of said plaintiff to him, and that he, said defendant, now is and has always been the owner thereof. As to the ownership of the notes as set up in defendant’s answer, plaintiff therein testified in his own behalf as follows: “I heard Mr. Watts testify on that trial had in the superior court.
He testified that he had not parted with these notes; that these notes had not left his possession except to go to the bank for collection. When he was asked whether those notes were ever discounted, he said, ‘No.’ Question. What did he say in regard to the possession of those notes from the time of their inception to the time of the trial? Answer. He said that they were in his possession; that he never had parted with them.
He showed them, with the indorsement upon them; stating that they came to him through the usual channel. He testified that he was the owner of them.” Evidence of the ownership of the note as set forth in defendant’s answer was thus given upon the trial; and, although at variance with the testimony of the plaintiff, was before the jury, and upon the whole evidence before them the jury passed. .
Justice Truax, in his charge to the jury, submitted this issue to the jury, wherein lie stated as follows: “The defendant denies that the plaintiff gave him the notes to be discounted. The defendant denies that he discounted the notes; and he alleges that the notes were given by the plaintiff to him in payment of a debt that the plaintiff 324 then owed to him on a matter that related to a partnership that had theretofore existed between the plaintiff and the defendant.
Those allegations and denials make the issue for you to try, and the only issue.” And the jury found, upon the evidence therein, that the note was made and delivered by Adler, the plaintiff therein, to the defendant, the payee, in part settlement of an indebtedness of Adler to Watts; that the note was never discounted, or offered for discount; and that Watts, the defendant therein, was then, and always had been, the holder and lawful owner thereof for the purposes for which, it was given,—the finding of the jury, upon the evidence therein, being in favor of the defendant, and against the plaintiff, upon all the issues.
The estoppel of said judgment extended to every material matter within the issues which were therein expressly litigated and determined,—were comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. See Pray v.Hegeman, 98 N. Y. 358; Patrick v. Shaffer, 94 N. Y. 430, and cases cited.
And the j ndgment rendered therein is final and conclusive between the parties, Adler, the maker, and Watts, the payee, not only as to the matter actually determined therein, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation, within the purview of the original action, either as matter of claim or defense.
Jordan, v. Van Epps, 85 N. Y. 436; Fairchild v. Lynch, 99 N. Y. 368, 2 N. E. Rep. 20; Dunham v. Bower, 77 N. Y. 79. Every matter of claim or defense could have been litigated, in the action in the superior court, between Adler, the plaintiff therein, (the maker,) and Watts, the defendant, (the payee,) which could be litigated in the action herein between Adler, the maker, and Hartnett, the plaintiff herein, the assignee of Watts, the payee.
As to the appeal from the interlocutory judgment rendered herein on November 25, 1887, appellant’s attorney presents no argument thereon in his points submitted, and, no reference having been made thereto by him, in his argument of the appeal, it was, I think, conceded that such appeal was abandoned. I find no errors made by the trial justice, in the rulings made by him therein, which require correction; and the final order and judgment must be affirmed, with costs.
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