#### The Lembeck & Betz Eagle Brewing Company, Appellant, *v.*Louis M. Crudo, Respondent.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Negotiable instruments — bills, notes and checks — action to recover on check — consideration — former adjudication.

On December 13, 1895, defendant, a saloon keeper, who bought beer of plaintiff, gave him a check for $156, which together with $44 discount on beer was credited to his account, and a judgment recovered in an action commenced in July, 1896, by plaintiff against defendant to recover $247 for a balance due for goods sold and delivered between September 1, 1895, and January 1, 1896, was secured in August, 189.6, and paid. In an action subsequently brought to recover on the check, the defenses were payment and former adjudication. Held, that the burden was on defendant to show affirmatively that the balance due, for which suit was brought, was not arrived at by including in the credits the item of said check, so that the debt for which it was given was actually, embraced within the issue in that litigation and determined, and the fact might be shown by parol. ’

*235If said check was accepted as payment, credited on the account and the balance thereof sued for was struck with the credit of the check allowed, and an agreement entered into that said check should be paid by defendant either in cash or by crediting thereon subsequent discounts on beer purchased, the check would constitute a new obligation, the consideration of which would be the extinguishment of the preceding debt, and the amount remaining unpaid on the check will be enforcible and the former adjudication would not be a bar; if, however, the credit of said check was charged back before the balance was struck, the former adjudication would be a bar.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, first district, in favor of the defendant after a trial by the court without a jury.

George Ryall, for appellant.

' Morris Kamber, for respondent.

Page, J.

This action was brought to recover upon a check for $156 given by the defendant to the plaintiff upon December 13, 1905. The defenses are payment, and a former adjudication. On the first trial of this case a judgment between the same parties was offered in evidence but excluded, and judgment was given for the plaintiff which was reversed and a new trial ordered. 134 N. Y. Supp. 576. On the second trial the judgment roll in the former action was received in evidence and judgment was given for the defendant; from that judgment this appeal was taken. The evidence is very unsatisfactory. The facts as far as we have been able to deduce them from the record are as follows:

The defendant was a saloon keeper buying draught and bottled lager beer from the plaintiff. On December 13, 1905, the defendant gave the plaintiff the check in suit, which, together with" certain credits to which the defendant was entitled for discount on beer of $44, was credited to his account. This check was protested for nonpayment. There*236after further sales of beer were made by the plaintiff to defendant, and in July, 1906, an action was brought in Rockland county, by the plaintiff against the defendant, to recover $247 for a balance due for goods sold and delivered between the 1st day of September, 1905, and the 1st day of January, 1906. Judgment was secured in August, 190'6, and the judgment was paid. This period covers the time that the goods were sold for which the check in suit was given. But whether the price of those goods was included in the amount for which suit was brought does not clearly appear from the evidence. The burden is upon the defendant, as he claims the former judgment is a bar to'this action, to show affirmatively that the balance due for which suit was brought was not arrived at by including in the credits the item of this check, so that the debt for which this check was given was actually embraced within the issue in that litigation and determined, and this could be shown by parol evidence. Bell v. Merrifield, 109 N. Y. 202, 211; Lewis v. Ocean N. & P. Co., 125 id. 341, 348; Carleton v. Lombard, Ayres & Co., 149 id. 137, 152; Reynolds v. Ætna Life Ins. Co., 160 id. 635, 651.

The respondent in his brief states that this check when dishonored was charged back, but there is absolutely no evidence to sustain that contention. It will be necessary to determine whether this check was accepted as payment *pro tcmto*of the indebtedness. If it was, the check constitutes a new obligation and a cause of action, separate and distinct from the cause of action for goods sold and delivered, arose, and the judgment in the former action would not bar this action. The mere giving of the check would not have such an effect, for the substitution of one executory obligation for another does not extinguish the precedent debt unless there is an express- agreement to accept the new obligation for the old. If, therefore, this check was accepted as payment, credited on the account and the balance of the account sued upon in the Rockland county action was struck with this credit allowed, and an agreement was entered into that this check should be paid by the defendant either in cash or by the crediting thereon of subsequent discounts on beer pur*237chased, the check would constitute a new obligation, the consideration of which would be the extinguishment of the precedent debt, and the amount remaining unpaid upon, the check would be enforceable in this action and the former adjudication would not be a bar. If, however, the credit of this check on the account was nullified by charging back the amount thereof before the balance was struck, the former adjudication in the Rockland county action would be a complete bar.

. The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

It is hoped on the next trial that the evidence will be confined within the narrow limits indicated by this opinion.

Seabury and Lehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.