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Opinion of the Court, per ALLEN, J.

commercial instruments and other choses in action and property interests has been based upon the supposed interests of commerce and the necessity of giving the freest circulation to instruments so generally used in commercial transactions. Bills of exchange and promissory notes do constitute in a great measure the medium of exchange between merchants and take the place of money, and they pass from hand to hand transferable by indorsement or mere delivery, and many have thought that it would have been better if, in all cases of transfer of that class of instruments in good faith and in the ordinary course of business and upon a sufficient consideration as between the parties, the same had been held valid, and to have vested a good title in the transferree, Bay v. Coddington (5 J. C. R., 54), affirmed in the Court for the Correction of Errors (20 J. R., 637), was to the effect that to give title as against the rightful owner of commercial paper fraudulently transferred, it must be received by the transferree not only in the ordinary course of business and without notice, but also for a present value, for a fair and valuable consideration given or allowed at the time, that credit must be given to and value parted with on the strength of the identical paper, and that a past consideration or antecedent debt or liability was not sufficient. A mere receipt of a bill or note in payment of or as security for a precedent debt has never, in this State, been held sufficient to protect the title of the holder as against the equities of third persons, and some new credit must be given, new advance made, or some prior security parted with, or a debt absolutely satisfied and extinguished, in order to complete the title of the holder. (See cases cited in Farington v. Frankfort Bank, 24 Barb., 554.)

In this court the rule has not been departed from; on the contrary, it has been recognized and followed in Young v. Leo (2 Ker., 551); Boyd v. Cummings (17 N. Y., 101); Essex County Bank v. Russell (29 N. Y., 673); Brown v. Leavitt (31 id., 113). BROWN,.J., in Bank of New York v. Vandervorst (32 N. Y., 553), says: "The rule is, that if the

Opinion of the Court, per ALLEN, J.

holder parts with anything of value, money, property or existing securities, at the time he receives the note, and upon the faith of its being paid, he is ipso facto clothed with the attribute of a holder for value." In that case the plaintiff had taken the note in controversy as a collateral security for a loan made at the time upon another note and the bank was held to be a holder for value. In Lawrence v. Clark (36 N. Y., 128), it was decided that a party receiving a note on a precedent debt, without surrendering or relinquishing any security or right respecting it, is not a bona fide holder of the same. The note, before it fell due, had been transferred "by the payees to the plaintiff," who received and accepted it upon and in part payment of a prior existing indebtedness "of the payees to them." Coddington v. Bay; Farrington v. Frankfort Bank, supra; Rosa v. Brotherson (10 W. R., 85), and Payn v. Cutler (13 id., 605) were cited with approval, and the doctrine that a creditor receiving the transfer of a negotiable note in payment of a precedent debt without giving up any security, takes it subject to all equities existing between the original parties, reasserted. (See, also, Chrysler v. Renois, 43 N. Y., 209.) Here the defendant parted with or surrendered no security, and his situation was, in no respect, changed by the transaction, and if the title which he acquired is to be determined by the very liberal rules which, in view of the convenience if not the necessities of commerce, have been established in respect to negotiable instruments, the defendant is not to be regarded as a holder for value so far as the assignment was received in part payment of the precedent debt. If the butter was sold upon the faith of the transfer of the stock, the defendant would be entitled to be repaid that amount before reconveying the stock.

He would be entitled to a lien for the price of the butter.

The Supreme court properly reversed the judgment of the referee, but it was not a case for judgment absolute for the plaintiff. A new trial should have been awarded.

So much of the judgment of the Supreme Court as gives

Opinion of the Court, per GROVER, J.

judgment for the plaintiff is reversed and a new trial is granted, costs to abide event.

GROVER, J. The counsel for the respondent insists that the judgment is not a final determination of the controversy, and therefore not appealable to this court. The judgment determines that the plaintiff is entitled to the thirteen shares of stock, the subject of the litigation, and adjudges and directs the defendant, within five days after notice of its entry, to assign and deliver the same to the plaintiff, together with all evidence and papers relating to the title. It also determines that the plaintiff is entitled to recover costs of the defendant, and adjusts the amount thereof at $403.55, and awards execution therefor against the defendant; in these respects the judgment is final and the plaintiff can at once proceed to obtain satisfaction. But the judgment further determines that the defendant shall account for and pay over to the plaintiff all interest and dividends received by him upon such stocks, and appoints a referee to take and state an account thereof, and determines the manner in which such account shall be taken, and provides that upon the confirmation of this report the plaintiff shall have judgment for the amount so found to have been received by the defendant. In respect to this, the judgment is not final. The Code, section 11, provides that an appeal may be taken to this court from any actual determination made at a General Term of the Supreme Court and in a judgment in an action commenced therein or brought there from another court. In this case the judgment actually determines the title to the stock, and provides that the defendant shall within five days after notice of its entry, transfer the same to the plaintiff. It also awards execution against the defendant forthwith for the costs. In respect to the recovery of the interest and dividends received by the defendant, there appears to have been a severance and a separate and distinct judgment directed by the court therefor. This somewhat novel proceeding resulted from the award of final judgment by the General Term instead of ordering a new

Opinion of the Court, per GROVER, J.

trial upon the reversal of the judgment of the Special Term. Butler v. Lee et al. (3 Keyes, 70) and Adams v. Fox (27 N. Y., 640), are cited by counsel. In the former the judgment gave the plaintiff relief conditioned upon the performance by him of certain acts in a specified time, and, in case of his default, dismissed the complaint with costs to the defendant. It was no final judgment in favor of either party, and left it doubtful for which party such judgment would be given. The latter was an order for judgment for the defendant upon demurrer to the complaint, with leave to the plaintiff to amend upon terms. The appeal of the plaintiff therefrom, was dismissed for the reason that it was not final, but dependent upon the election of the plaintiff to amend or not upon the terms imposed. I think the judgment in the present case must be regarded as final, and that the question as to the interest and dividends must be regarded as severed, and a separate judgment in respect thereto provided for. The counsel for the respondent insists that the defence was not admissible. under the answer. The complaint, in substance, alleged facts showing, as claimed by the plaintiff, that he was the owner of thirteen shares of stock in an incorporated stage company in New York, which had been transferred to one L. J. Weaver, for the plaintiff, which the latter had transferred to the defendant, as the defendant claimed, in payment of a debt due from the defendant to him, and prayed that the defendant might be adjudged to assign and deliver such stock to the plaintiff and pay him the dividends received thereon. The answer was a general denial. To establish a cause of action, the plaintiff was bound to prove that he was the legal owner of the stock or equitably entitled to the same as against the defendant under this answer; the defendant had the right to give evidence controverting any fact necessary to be established by the plaintiff to authorize a recovery, but not to procure a defence founded upon new matter. Upon the trial, it was proved by the plaintiff that one Finch had formerly owned the stock. That he assigned the same with other property to L. J. Weaver and one Hutchins, in trust for his creditors, SICKELS-VOL. IV. 38

Opinion of the Court, per GROVER, J.

of whom the plaintiff was one. That Finch compromised with his creditors thereafter, and made an agreement with the plaintiff to take the stock in question, in satisfaction of the balance of his debt. That under this agreement the stock in question was transferred to L. J. Weaver, the son of the plaintiff, and in some matters his agent in New York, with intent to satisfy the plaintiff's debt. That the plaintiff was ignorant of the stocks being transferred to L. J. Weaver, or of the same being placed in his name upon the books of the company. That L. J. Weaver subsequently transferred the same to the defendant, who refused to transfer the same to the plaintiff, upon being requested so to do, or to account for and pay the dividends to the plaintiff. The facts proved showed that the legal title to the stocks was in L. J. Weaver. Finch, the former owner, had procured the same to be assigned to him by his trustee, without indicating any interest in any other person therein. It was registered in his name upon the books of the company; but the facts proved showed that, as between him and the plaintiff, the equitable title was in the latter, for whom L. J. Weaver held the stock as trustee. That L. J. Weaver transferred the stock to the defendant, who claimed the title by virtue thereof. This established the plaintiff's right to the stock as against the defendant, unless he was a bona fide purchaser from L. J. Weaver. (Crocker v. Crocker, 31 N. Y., 507.) To meet this case, the defendant offered to prove in substance that he was a bona fide purchaser of the stocks from L. J. Weaver. The Special Term held, overruling the plaintiff's objection, that this was admissible under the answer. This was error. Under the general denial the defendant could not introduce evidence tending to show a defence founded upon new matter, but such only as tended to disprove any fact that the plaintiff must prove to sustain his case. The plaintiff was not bound to prove, for this purpose, that the defendant was not a bona fide purchaser for value of L. J. Weaver. It was enough for him to show his equitable title to the stock in the first instance, and then it was incumbent upon the defendant to show that this equitable

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