Henderson v. Kohn

10 N.Y.S. 823, 32 N.Y. St. Rep. 1056, 57 Hun 590, 1890 N.Y. Misc. LEXIS 1005

• Court: New York Supreme Court
• Decided: July 18, 1890
• Status: Published

Opinion

Barnard, P. J.

The present defendants, in October, 1886, were partners under the name of J. O. Kohn & Co. This firm advanced money to the plaintiff, and took as security from him deeds of land in Tennessee as collateral security. These advances were made under agreements in writing in respect to the building of a railroad in Texas on the joint account of plaintiff and defendants. The firm of J. O. Kohn & Co. subsequently failed in business, and John A. Kohn, as assignee of the notes, brought an action upon them. In this action upon the notes the present plaintiff, Henderson, set up a breach of the contract under which the notes were given, and claimed that the notes were invalid, and that the lands given as collateral thereto should be deeded back to him, (Henderson.) The action for the recovery of the notes was tried by a jury, and it appeared that the notes were invalid, and the jury rendered a verdict to that effect. The judgment was entered simply in favor of the defendants, with costs. This action is brought to obtain a reconveyance of the land thus taken and held for these void and inoperative notes.

The first action is not a bar to this action. The former action binds the parties, and the judgment states that the right to obtain the reconveyance of the land was not within the issues which were tried in the action. The evidence offered to support the counter-claim was excluded because it could not be maintained in the action. The former action is only conclusive as to those matters whicli were or might have been litigated between the parties. Goebel v. Iffla, 111 N. Y. 170, 18 N. E. Rep. 649. The judgment, therefore, should be affirmed, with costs. All concur.