#### Clark B. Wheeler, plaintiff and respondent, *vs.*Elisha Ruckman, impleaded, &c. defendant and appellant.

1. Where the complaint in an action is dismissed, before the issues have been, tried, or a verdict of the jury given,' the judgment of dismissal is no bar to a subsequent action for the same cause.

2. Where a complaint is dismissed, for want of proper parties, and not on the merits, the judgment of dismissal is no bar to a subsequent action.

3. If the answer, in an action on a promissory note, does not set up as a. defense that the note was purchased by the plaintiff, an attorney, for the purpose of prosecution, such defense is not admissible, on the trial.

4. A case made on a former trial, being no evidence of what took place on the trial, the fact of its being in the handwriting of a party is immaterial, upon the question of its admissibility as evidence.

(Before Robertson, Ch. J., and McCunn and Jones, JJ.)

Heard June 1, 1868;

decided July 3, 1868.

Appeal by the defendant, Ruckman, from a judgment entered in favor of the plaintiff on the verdict of a jury. The action was brought by the first indorsee of a promissory note, against the makers, viz. the appellant and the defendant Lake.

The complaint was in the usual form, alleging the making by the defendants, and indorsement of such note in. February, 1854, by the payee, (Russell,) to the plaintiff. The answer, after denying the indorsement of such note by the payee, and the plaintiff’s ownership thereof, set up four defenses. (1.) The falsehood and fraud of a representation by the payee, that he had a lien upon certain oysters bought by the defendants, upon the faith of which, they gave him such note,, and that the plaintiff took such note, after it was due, and with notice of such fraudulent representation. (2.) An attachment issued against suck payee in the Supreme Court, in favor of a Mr. Drury, while such note was the property of the payee, and notice to the plaintiff thereof by the sheriff of the county to whom *448it was issued. (3.) The appointment of a receiver of the property of the plaintiff, in an action brought against the defendants by him, in which they recovered judgment against him for costs. The recovery of judgment by the defendants in. such action, which was for the same cause of action as that set forth in -the complaint, of dismissal of the complaint therein.

The plaintiff in a reply to such answer set up: (1.) A deduction of .$20 from the judgment in favor of Drury by order of the Supreme Court, after it was entered. (2.) That the former action of the plaintiff against the defendants set up in. the answer was not tried upon the merits, but their consideration was withdrawn from the jury, and the complaint dismissed by the court for defects in the pleadings; and (3.) That he paid the judgment for costs therein before the commencement of this action.

On the third of February, 1854, the payee of such note (Bussell) signed an agreement reciting that he had that day left for collection the promissory note in question, whereby-he agreed in case the same was collected to allow the plaintiff the interest then due and $50, and a proportionate amount in case a less sum was collected. The plaintiff agreeing, on his part, to lose all his fees and disbursemensts, in case nothing was collected. The next day, February 4, (as the plaintiff testified on the trial,) Bussell being then indebted to him for professional services, agreed that he might have such note in payment for them and for professional services agreed to be rendered by him.. On the 10th of February, 1854, the plaintiff'" commenced an action, as attorney for Bussell, in the marine court of the city of Sew York, against the defendants, upon such note; in the complaint, in which action, signed by the plaintiff as attorney, it was alleged that Bussell was then the owner thereof. On the 27th of February, 1854, an attachment was issued against Bussell to *449the sheriff of the city and county of Yew York, in an action in the Supreme Court of this state, in which he was defendant and one Samuel Drury, plaintiff, and notice thereof given by such sheriff to Russell and the plaintiff, which fact was set up as a defense in the action in the marine court, and thereupon the complaint in such action was, for that reason, dismissed, because such sheriff was not a party to it, but upon appeal from the judgment therein to the court of common pleas of the city and county of Yew York, the latter reversed such judgment, in January, 1855, but nothing further was done therein. On the 29th day of December, 1854, Russell executed to the plaintiff an assignment, under seal, of the promissory note in question. In March, 1855, the plaintiff commenced an action in this court, in his own name, against the defendants, upon such note, in the complaint wherein he claimed title thereto, under such assignment, in December, 1854. The defendants set up therein the same defenses as in this action. Upon the trial of that action the court ordered the complaint therein to be dismissed, without allowing the issues therein to be passed upon by the jury impanelled to try the same.

*J. C.*Dimmick, for the appellant, defendant.

*C. P. Schermerhorn,*for the respondent, plaintiff.

*By the Court,*Robertson, Ch. J.

The counsel for the defendant moved, on the trial of the issues of fact in this action, to dismiss the complaint upon the ground that the former action in this court, mentioned ip the answer, was a bar to this action, which the court refused, and an exception was taken by him to such refusal. He also requested the presiding judge to charge the jury that the plaintiff bought this note for prosecution, being a practicing attorney, and therefore could not recover upon it; *450which the judge refused, and the counsel excepted. The presiding judge charged the jury that neither the judgment in the former action between the same parties, in this court, nor that in the action in the marine court, brought in the name of Russell, were bars to this action ; to which instructions the defendant’s counsel excepted. These are all the exceptions in the case upon the merits. The judgment in the former action in this court was no bar, because the complaint in it was merely dismissed, and the issues were never tried, or a verdict of the jury rendered. *(Dexter*v. *Clark,*22 *How. Pr.*289. *Seaman*v. *Ward,*1 *Hilt.*52. *People*v. *Vilas,*3 *Abb. N. S.*252. *Coit*v. *Beard,,*33 *Barb.*357. *Coit*v. *Bland,*22 *How. Pr.*2. *S. C.*12 *Abb.*462.) The judgment in the marine court was also no bar, because it was a dismissal of the complaint for want of parties, and not on the merits.

The reversal seems to have had no other effect than to give the plaintiff in it costs, as it was never tried again. *(Anon.*9 *Wend.*503.) This judgment was also not set up in the answer as any defense; nor was any such defense set up therein as to the purchase by the plaintiff of such note for prosecution, although it had been in the former action, in this court; so that no such defense was admissible on the trial. Besides, there was not enough evidence in the case to sustain a charge of a purchase for such purpose, if it had been set up as a defense.

The written agreement of the 3d of February, 1854, did not constitute a purchase of the note in question; the parol agreement of the 4th made it only partly one, and the plaintiff was already employed to sue upon it. The assignment of December, 1854, was executed after the termination of the action in the marine court, and its objects and occasion fully explained.

The following questions were excluded, on the trial, and exceptions taken,

*4511st. “ Did you draw the complaint in this case ?” This was put to the plaintiff in reference to the action in the marine court, brought in the name of Russell.

2d. “Did you not, also, on that trial, claim that Robert P. Russell was the owner of the note ?” This also referred to the trial in the marine court. '

3d. “Had you ever commenced any other suit for Robert P. Russell, prior to this note being left with you ?”

Hone of the information sought by these questions was material. In fact the first was answered by the plaintiff testifying, subsequently, that his brother drew *the complaint*inquired about, and he did not. In reference to the second, he stated that he employed counsel on such trial. Hor do I "see that his claiming, on the trial, that Russell was the owner of the note was more important than his acting as attorney in the suit in which he claimed it. That question was disposed of by this court when this case was before it, formerly. (1 *Rob.*408.) The fact of commencing or not commencing some other suit for Russell, befoi-e the note was left by him with the plaintiff", was wholly irrelevant.

The following question was put to the plaintiff, and its admission excepted to: “Did you ever, at any time, in substance, make any claim to this note, other than that you became the owner on the 4th of February, 1854 ?” But the exception became useless, because it was never answered; the plaintiff merely saying, in reply, to which no exception was made, that he didn’t “think he ever testified to that;” and so it appears by the case.

The defendant’s counsel offered a copy of the case, prepared on the appeal from the judgment on a former trial of this action, claimed to be in the handwriting of the plaintiff, which, the case before us states, showed an entirely different statement by him from that made on the present trial. The fact that the case was in his handwriting, can make na difference as to the admissibility of the evidence. *452The case itself is no evidence of what took place on the trial. *(Neilson*v. *Columbian*Ins. *Co.,*1 *John.*301.)

These are all the exceptions insisted on upon the argument. The jury passed upon the question of the transfer to the plaintiff on the third or fourth of February, 1854, (prior to the attachment in the *Drury*case,) because it was expressly submitted to them, and they were directed to find for the defendant, if the note was not then transferred ; and this fully defeated any claim under the Drury attachment.

There being no error in the charge, or refusal to charge, or the admission or exclusion of testimony, the judgment should be affirmed, with costs.