
    Malcolm Henderson, Resp’t, v. Julius A. Kohn, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Former adjudication — When not a bar.
    In a former action brought by defendants against plaintiff on certain notes, the answer set up their invalidity and demanded a reconveyance of lands given as collateral thereto. Evidence in relation to a right to reconveyance was excluded as not within the issues, and judgment was rendered in favor of the defendant therein, the jury having found the notes invalid. Held, that such judgment was not a bar to an action to obtain a reconveyance of such lands.
    Appeal from judgment directing the reconveyance of lands by defendant. '
    ' Nathan Bijur, for app’lt; Moore & Moore, for resp’t
   Barnard, P. J.

The present defendants in October, 1886, were partners under the name, of J. A. 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. Th¿ firm of J. A Kohn & Co. subsequently failed in business, and Julius 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 underwhieh 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 defendant, 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 counterclaim was excluded because it could not be maintained in the action. The former action is only conclusive as to those matters which were or might have been liti_ gated between the parties. Goebel v. Iffla, 111 N. Y., 170; 19 N. Y. State Rep., 105.

The judgment, therefore, should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  