
    George G. Terry, Receiver, etc., Appellant, v. William Wait, impleaded, etc., Respondent.
    (Argued February 13, 1874;
    decided February 24, 1874.)
    This court will not interfere with an adjudication of the Commission of Appeals, upon the same points, between the same parties, in the same case.
    The omission of this court, when sanctioning a former decision, to notice and discuss in the opinion supposed distinctions, is not sufficient to warrant a supposition that they have escaped observation.
    In an action brought by the receiver of a judgment debtor to have the transfer of a promissory note, alleged to have been made by such debtor in fraud of his creditors, adjudged to be void, and to enforce the note as the -property of the debtor, the maker of the note defended, denying plaintifE’s title and alleging payment. Plaintiff failed to show the fraud, or title to the note. Held, that the fact of payment to another claimant was immaterial and unnecessary to sustain the defence.
    
      Appeal from judgment of' the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of defendants, entered upon an order dismissing the complaint on trial at circuit.
    This was an action brought by plaintiff as receiver, appointed in proceedings supplementary to execution, of the property of David W. Wait, to have the transfer of a promissory note given by defendant William Wait to the judgment debtor, and by him transferred to defendant Martin, declared fraudulent and void, and to recover upon said note. The complaint alleged that the note was transferred with intent to defraud the creditors of the judgment debtor. Defendant William Wait appeared and answered, denying the allegations of fraud and pleading payment. The summons was served by publication upon defendant Martin, and judgment by default entered against him.
    A memorandum of the decision of the Commission of Appeals upon a former appeal, appears in 48 blew York, 657. Upon this trial, no evidence of fraud in the transfer of the note was given by plaintiff.
    Eo proof of payment was given on the part of defendant. Further facts appear in the opinion on motion for reargument.
    
      E. F. Bullard for the appellant.
    Defendant Wait having failed to prove payment, is liable on the note to Martin or to plaintiff. (Code, § 122; McKay v. Draper, 27 N. Y., 256; Howlands v. Lounds, 51 id., 609; Chautauqua Co. Bk. v. Risley, 19 id.,. 370; Bostwick v. Menck, 40 id., 383.) This court has full jurisdiction to make the decree against Martin. (Gray v. Schenck, 4 N. Y., 460, 463.)
    
      J. S. L'Amoreaux for the respondent.
    In the absence of proof of fraud plaintiff cannot recover. (Cothran v. Collins, 29 How., 146, 148; James v. Chalmers, 6 N. Y., 209.)
   Rapallo, J.

We think that the judgment of the Commission of Appeals on the former argument of' this case concludes the parties, upon the point sought to be raised upon this appeal. The commission decided that the plaintiff could not recover against William Wait without proof of the alleged fraud in the transfer of the note by David W. Wait to Joseph B. Wait, and by him to the defendant Martin; and further, that the judgment which had been entered against Martin by default, on publication of the summons, did not establish those allegations as against the defendant William Waic. In pursuance of this decision and the order thereon, the parties went down to a new trial, and no attempt was made on such new trial to supply the defect of proof which the commission had decided to be fatal to the plaintiff’s case. Without intimating doubts as to the correctness of the decision of the commission, we decline to interfere with it, on the ground that it is an adjudication between the same parties in the same case, upon the very point which we are now asked to consider. If any circumstances could be suggested which would justify the exercise of such a power, they do not appear in the present case.

The judgment should be affirmed.

All concur, except Grover, J., not voting.

Judgment affirmed.

A motion for reargument was subsequently made by appellant, which was decided upon the following opinion: — [Rep.

Ratallo, J.

The counsel for the appellant has made an application for a reargument of this cause upon the supposition that this court, in adhering to the decision of the Commission of Appeals upon the former appeal in the same case, failed to notice that when the case was before the commission it contained the fact that before the commencement of the action the note in suit had been paid by the defendant William Wait to the defendant Martin, which fact was not proved upon the second trial, and he now seems to consider that that fact was controlling and justified the decision of the commission. Hp now fully concedes the correctness of the decision of that tribunal in view of that fact, although, on the points presented by him on the argument before us, his principal contention was that the decision of the commission was not sound law, and he excused his omission to apply for a reargument before it, on the ground that the new trial, which had been granted, would afford him an opportunity to reargue the question before this court, which he deemed a preferable course.

The learned counsel is in error in supposing that this court overlooked the difference to which he now attaches so much importance. So far from being overlooked it was fully discussed and carefully considered by the judges of this court in consultation, and was deemed immaterial. A reference to the opinion of Earl, C., clearly shows that the commission took the same view, for the learned commissioner expresses quite emphatically the opinion that the motion for a nonsuit, which was made before the introduction of proof of the payment of the note, ought to have been granted; and that, at that stage of the proceedings, the plaintiff had failed to make out any case.

Counsel are very apt to fall into the error of supposing that every point and suggestion in cases which they argue, is overlooked by the court when not specifically discussed and answered in a written opinion, and this error has, in several instances, led to applications like the present. ' They should reflect that before a case is decided, the court is in the habit of deliberately considering it in all its bearings, and that when sanctioning a former decision the mere omission to notice and discuss in the opinion, supposed distinctions,’ is not sufficient to warrant the supposition that they have escaped observation.

In the present case, the plaintiff sought to recover upon a promissory note which was not in his possession, and was not produced upon the trial, or shown to have ever been held by him. The plaintiff was, in May, 1863, appointed receiver of the property of David W. Wait, under proceedings supplementary to an execution against him. The judgment debtor had been, in 1862, the holder of the note in question, which was made by William Wait, one of the defendants in the action, and it was alleged in the complaint that the note had been, in 1862, transferred by David W. Wait to Joseph E. Wait, and afterward by him to Martin, the other defendant in this action, with intent to defraud the judgment creditor, at whose instance the plaintiff was appointed receiver. The answer of the defendant William Wait put in issue these allegations of fraud, and no proof was given in support of them. The plaintiff failed to show any title to the note, or in whose hands it was, or even when it matured. A judgment by default, on publication of the summons against the defendant Martin, was relied upon as evidence of plaintiff’s title to the note. The commission decided that the judgment was not evidence as against the defendant William Wait. We refused to review that decision. If the plaintiff failed to show title to the note in himself, we deemed the fact that the defendant had paid. the note to another claimant immaterial, and unnecessary to sustain the decision of the commission.

The motion should be denied, with costs.

All concur.

'Motion denied. 
      
      48 N.Y., 637.
     