#### The Crompton *&*Knowles Loom Works, Respondent, *v.*Wolstan R. Brown, Appellant.

(City Court of New York, General Term,

April, 1899.)

1. Former adjudication.

The recovery of a judgment upon the first of a series of three notes, given at the same time and under the. same circumstances, is an ' adjudication between the parties which precludes the maker from setting up against another one of the notes a defense which, if it existed at all, existed against the first note.

2. Amendment — A new defense cannot be interposed.

On a motion to conform an answer to the proof, an entirely new defense cannot be interposed.

Appeal from a judgment upon a verdict directed by the court ;in favor of the plaintiff.

Philip Carpenter (A. Stewart Holt, of. counsel), for appellant.

Benno Loewy, for respondent,

O’Dwyer, J.

The action was brought upon a promissory note made and delivered' by the defendant to the plaintiff.

The answer denied that plaintiff was the holder of said note for value, but affirmatively alleged that the defendant received no consideration for the note in suit; that the same was given pursuant to an agreement between plaintiff and defendant to release a corporation known as The Eagle & Phoenix Silk Company from a -claim of the plaintiff against said corporation, and that such ■release was refused, although requested.

Upon the trial the plaintiff introduced the promissory note and protest, gave proof of the amount of interest and then rested.

. The defendant took the stand and testified that at the time of the execution of the note he had a conversation with Mr. Hutchins, the president of the plaintiff corporation; that Mr. Hutchins told him he wanted the notes of the Eagle & Phoenix Silk Company paid; and that if he, the defendant, paid them, or would give his' .notes for them, he would give to the defendant the lien that the *320corporation had on The Eagle & Phoenix Silk Company; he also testified: “ I know there was a lien. I never saw it, hut I was infpmied of it. Under the , law of the state of Pennsylvania I could not see it. Machinery delivered in the state of Pennsylvania is a lien upon the property until it is paid for.”

It was shown - on the part of the plaintiff by the same witness that on the 26th of January, 1898, and at the time of the purchase by The Eagle & Phoenix Silk Company of the machiuery, the defendant had executed a written guarantee for such purchase price, as .a consideration for the acceptance by the plaintiff of , promissory notes of The Eagle & Phoenix Silk Company.

That on the '3d of June, two of the promissory notes of The Eagle & Phoenix Silk Company guaranteed by the defendant had gone to protest.

. That a demand was then made upon the defendant by the president of the plaintiff to pay upon his guarantee. :

That then three promissory notes embodying the claim of the. ■plaintiff against said company were given by the defendant.

That upon the first due of these promissory notes judgment was obtained' by default which judgment defendant paid. ■

- That the Second of these notes was paid after suit brought thereon.

It thus appeared from the defendant’s own proof on the trial that the claim of the plaintiff originally arose from merchandise sold to The Eagle & Phoenix Silk Company; that the purchase price of such merchandise was -secured by the promissory notes- of that company, payment whereof was guaranteed by the defendant, and that upon the nonpayment of several of these promissory notes, the defendant being called ripon to respond upon his guarantee, made and delivered the promissory notes, of which that in suit is one, and hence that there was a sufficient consideration for the promissory note, viz., the liability upon the defendant’s written guarantee, and that the defendant must conceive that the evidence in his behalf failed to sustain his plea of an unperformed agreement upon- the part of the plaintiff to release The Eagle & Phoenix Silk Company from a claim of the plaintiff -against said corporation.

The recovery óf a judgment upon one of the series of promissory notes, of which the note in suit is also one, was *res adjtidieata*between the parties and precluded the defendant in the present action. It was conceded that the note included in the judgment, *321Exhibit D, was given at the same time, upon the same consideration and agreement as the note in suit, the three notes are spoken of by defendant as “ a series.” He testified concerning them: *“*Ultimately I paid the second note.” Therefore, if any defense existed to the third note, it existed with the same force against the first, and should have been pleaded in the action brought upon that note. The plaintiff having failed to plead an existing defense, is bound by the adjudication. Brown v. Mayor, 66 N. Y. 385; Gates v. Preston, 41 id. 113; Newton v. Hook, 48 id. 676; Walden National Bank v. Birch; 130 id. 221; C. Graham & Sons Co. v. Van Horn, 49 N. Y. Supp. 401.

The motion made by the defendant at the close of the evidence to amend the answer to conform to the proof so that it shall read that the defendant gave such note pursuant to an agreement by the" plaintiff and the defendant, whereby the plaintiff agreed to transfer to the defendant its lien upon the property of The Eagle *&*Phoenix Silk Company was properly denied.

The variance between the plea and the proof was not an immaterial variance, such as could be amended under section 539 of the Code, but was, in effect, the substitution of an entirely new defense, which was not permissible upon such a'motion. Furthermore, upon the merits it appeared that nearly three months before the making of the alleged contract, viz., on the lLth of March, 1898, the defendant had, in writing, assented to a release given on that day by the plaintiff to The Eagle & Phoenix Silk Company, of all claims, mechanics’ liens, and so forth, affecting the machinery sold to said company by the plaintiff.

The plaintiff was entitled to the verdict directed, and the judgment thereon should be affirmed, with costs.

McCarthy and Conlatt, JJ., concur.

Judgment affirmed, with costs.