Hartnett v. Adler. note in suit, or what was due on it. The subject matter of this suit is assumpsit. The plaintiff was obliged to prove, as the foundation of his claim, that his indorser, Watts, held said note, free from any equities when it was transferred to him, the plaintiff. The subject matter in the first action was entirely different from this. The judgment, therefore, in Adler v. Watts, is not res adjudicata. The party alleging the estoppel of a former verdict must establish that the same fact sought to be litigated in the second suit was in issue and litigated in the former one (Remington Paper Co. v. O'Dougherty, 81 N. Y. 474, 489, and see the language cited from cases of Outram v. Morewood, 3 East 236; Boileau v. Rutlin, 2 Exch. 664; Lawrence v. Hunt, 10 Wend. 81, citing Jackson v. Wood, 3 Wend. 27, 8 Wend. 9; Vaughan v. O'Brien, 39 How. Pr. 515, 519; and, to same effect, Kerr v. Hays, 35 N. Y. 331, Bigelow on Estoppel, 37, and Clark v. Young, 1 Cranch 181; Cromwell v. Sac County, 94 U. S. 351; Woodgate v. Fleet, 44 N. Y. 10, 13, citing People v. Johnson, 38 N. Y. 65; Mersereaux. Pearsall, 19 N. Y. 109; Sweet v. Tuttle, 14 N. Y. 465; Verplanck v. Van Buren, 76 N. Y. 347; Gardner v. Buckbee, 3 Cowen 120; Tuska v. O'Brien, 68 N. Y. 446; Bell v. Merrifield, 109 N. Y. 202, 211, citing Stowell v. Chamberlain, 60 N. Y. 272). Even if the defendant had set up in the Superior Court suit the amount due on the notes, as a counterclaim to the plaintiff's demand, yet, if that issue was not litigated, the judgment in that suit would not be res adjudicata that the defendant should recover the amount of the notes. If this be true of Watts, the indorser of the note, it must be true of the indorsee, this plaintiff, who took the note after maturity, for he can get no greater rights than his indorser had (Sweet v. Tuttle, 14 N. Y. 465; Dawley v. Brown, 79 N. Y. 390; Masten v. Olcott, 24 Hun 587, and 101 N. Y. 152). The case of Yonkers & N. Y. Fire Ins. Co. v. Bishop (1 Daly 449), as bearing upon the question of res adjudicata, has no applicability to the case at bar. It was there held, that where the affidavit of the defendant in summary proceed Hartnett v. Adler. ings to dispossess for the non-payment of rent raises two questions, and the jury finds generally for the defendant, both questions are presumptively res adjudicata, and that in a subsequent action for the same rent the verdict was presumptively res adjudicata on both points, and that it was for the plaintiff to show that the jury only passed on the question of demand. The answer to this is obvious. In all cases of summary proceedings to recover the possession of real property for non-payment of rent, the affidavit or petition must show at least two things: (1), that, as between the parties, the relation of landlord and tenant exists; and (2), demand for the rent due. As both the facts are necessary to sustain a summary proceeding for this purpose, and as both must affirmatively appear, the presumption is that both questions were litigated and determined, for no judgment could have been obtained otherwise. This view was evidently entertained by the general term of this court in deciding the case of Yonkers & N. Y. Fire Ins. Co. v. Bishop (supra). It is quite clear that the court recognized, throughout its opinion, the possibility of showing, dehors the record, that issues included in it were not litigated and determined. . Its utterances, so far as they go, are in harmony with the views laid down by the Court of Appeals in Bell v. Merrifield (109 N. Y. 202, cited above,) viz., that upon the party claiming the benefit of a prior adjudication of fact, rests the burden of showing that such adjudication has been made. Treadwell Cleveland, for respondent.-The first defense was res adjudicata, by the judgment of the Superior Court. As appears by the complaint and the answer in that action, precisely the same matter was set up in that action, as the ground of the cause of action, as was set up by the defendant herein, as the ground of his first defense. The defense of res adjudicata is available to the plaintiff in this action precisely as it would be available to Watts, the payee, were he the plaintiff. Hartnett, for this purpose, stands in fact in Watts' shoes. He and Watts are privies (Leonard v. Barker, 5 Denio 220; Griswold v. Jackson, 2 Edw. Hartnett v. Adler. Chan. 466; Wells on Res Adjudicata, 122; First Nat. Bank v. Fourth Nat. Bank, 89 N. Y. 412; Bissick v. McKenzie, 4 Daly 265; Bigelow on Estoppel, 48 to 59, especially 57; Goddard v. Benson, 15 Abb. Pr. 193). The verdict was general, and must be taken to have decided the two issues litigated, including the existence of the agreement which, in this case, is set up as an equitable defense (Cornwall v. Sac County, 94 U. S. 351; Embury v. Conner, 3 N. Y. 522; Pray v. Hegemạn, 98 N. Y. 358; Jordan v. Vun Epps, 85 N. Y. 536 ; Patrick v. Shaffer, 94 N. Y. 430; Griffin v. Long Island R. Co., 102 N. Y. 452). That the issue in this action is embraced within the issues of the former action is apparent on the pleadings. It is immaterial that the form of the action is here special assumpsit, and was there general assumpsit for money had and received to the plaintiff's use. The forms of the actions may be widely different, and yet the issues the same (Rice v. King, 7 Johns. 20; Jones v. Scriven, 8 Johns. 453). If the same evidence would sustain both issues, they are identical, whatever the forms of the actions. This is the final test (Per DE GREY, Ch. J., Hitchin v. Campbell, 2 W. Bl. 831, quoted by Lord Eldon in Martin v. Kennedy, 2 Bosanq. & P. 71; 2 Phillips on Evid. 27). Where the issues decided in the first action are numerous, the judgment is presumed to be rendered upon them all. Accordingly, if the defendant in this case would overturn the presumption of res adjudicata here, he must show that Adler v. Watts was decided upon an issue other than that raised in this case, and that the issue here raised has not yet been determined by a jury (Yonkers & N. Y. Fire Ins. Co. v. Bishop, 1 Daly 449, and cases; Hale v. Andrews, 6 Cowen 225). The result reached is a desirable one. A transferee taking, although for value, after maturity, is presumed to have notice. of all equities existing against his transferor. He is bound to beware of such equities. Correlatively he is entitled to avail himself of all rights which his transferor had-of all advantages which attach to the instrument itself as it comes Hartnett v. Adler. into his hands. As the event shows, it is not the least of these advantages that the fact of consideration for this note has been once determined and is now res adjudicata. If the transferee here, the plaintiff, had investigated his transferor's title, he would have found this former judgment, and upon the question of consideration he would have been set at rest by it. He would have been absolutely sure that no equity such as against an accommodation note existed here, and what he asks now is to be allowed to show the verdict and judgment as proof, of the best, speediest, and most conclusive sort, that no such equity existed against his assignor, and that therefore none could or did exist against him. LARREMORE, Ch. J.-Statements of the facts involved on this appeal precede both of the opinions rendered by the General Terin of the City Court; it is therefore unnecessary to restate such facts. It also seems to us best to take up the discussion of the main question without preliminaries, where the City Court left it. In the first place, then, it may be said that we concur in the conclusion expressed in one of the opinions that the case of Yonkers & N. Y. Fire Ins. Co. v. Bishop (1 Daly 449) was a controlling authority upon the decision in the City Court. The cited case was a suit for rent. The defense was that, in a prior summary proceeding between the same parties to recover possession of the premises, the jury had found in favor of the defendant. In such proceeding two defenses had been raised, viz.: (1) Whether the rent was due; (2) Whether there had been a proper demand. It is to be noticed that a finding favorable to defendant on either one of these issues would have been sufficient to entitle him to the verdict he received. Defendant was not required to have both questions determined in his favor in order to obtain a dismissal of dispossess proceedings. But, as both questions had been raised and submitted, and the result had been a general finding for defendant, it was held that it would be presumed that both questions had been passed upon, and that the verdict was presumably res adjudicata as to either of the questions subsequently Hartnett v. Adler. arising, and therefore a bar to the claim for rent. We approve of the principle laid down in that case and think it is in accordance with sound sense. In fact we do not see how any other presumption could be entertained under such circumstances; and the opportunity will always exist to overcome mere presumption by positive testimony when the same can be given. Fur In the prior action in the Superior Court between the present plaintiff's assignor and the present defendant, there were raised two questions: the first was whether the note here in suit had been delivered by defendant to said assignor, simply that the latter should procure its discount for defendant's benefit; and the second was, whether said note had been given to said assignor by defendant in payment of a bona fide debt. The general verdict in favor of plaintiff's assignor in the Superior Court action was therefore presumptively an adjudication against the present defendant on both questions. thermore, counsel for plaintiff in the case at bar have not relied on a mere presumption. They have offered in evidence the judgment roll in the Superior Court action, which affords affirmative proof that the precise question here involved was actually submitted to and passed upon by the jury. The following is an extract from Judge TRUAX'S charge upon the trial of such prior action, the person designated as plaintiff by Judge TRUAX being the defendant Adler in this action, and the person designated by him as defendant being plaintiff's assignor, the payee of the note in suit: "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 then owed to him on a matter that related to a partnership that had theretofore existed between the plaintiff and defendant. Those allegations and denials make the issue for you to try, and the only issue." We find nothing, either in the authorities cited or in the arguments advanced on behalf of appellant, which leads to a different conclusion from that reached by the City Court. The recent tendency has been towards a widening of the |