On appeal from the Supreme Court.
For the appellant, David Saperstein.
For the respondent, Ward J. Herbert and Arthur F. Egner.
The opinion of the court was delivered by
CAMPBELL, J. This is an appeal from a judgment entered, summarily, upon the striking out of an answer. The
suit was upon a judgment obtained in the State of New York against the defendant-appellant and others.
The action in New York, resulting in the judgment which is the basis of the present action, was for the recovery of the amount of certain promissory notes made by Bischoff, Incorporated, to the order of one Jack T. Cosman, and endorsed by him, National Evans Motion Picture Film Laboratory, Incorporated, Tom Evans, and appellant, in the order named and which notes were purchased, or discounted, by the plaintiff-respondent. In that proceeding the result was a judgment in favor of all of the defendants therein. The plaintiff therein, respondent here, appealed to the appellate division of the Supreme Court, which reversed the judgment. From this judgment all the defendants, except Cosman, appealed to the Court of Appeals, such appeal resulting in an affirmance of the judgment of the appellate division against them and was final. Cosman, not having appealed, was entitled to a new trial of the original cause in the trial court.
Subsequently the proceeding, sub judice, was commenced against the appellant alone by the respondent, the holder, originally at least, of the judgment in New York.
The complaint was in the form usual, and proper, in such actions and, among other things, averred by its fifth paragraph that the "plaintiff is still the owner and holder of said judgment and the judgment still remains in full force and effect, not in any way reversed, annulled or in anywise vacated but still remains due and unpaid * * *."
This, appellant, by his answer, directly denied. He also pleaded two separate defenses; namely:
(1) Full payment and satisfaction to the plaintiff, of the judgment and the full discharge, thereby, of the defendant-appellant's liability; and
(2) That defendant-appellant's liability, by endorsement, is subsequent and secondary to that of Cosman; that after entry of such judgment in New York, it was paid and satisfied to the plaintiff by said Cosman; that the plaintiff-respondent is not the owner or holder of the judgment ...