
    Thomas Newton, Respondent, v. Julian Hook, Appellant.
    A judgment by default in an action to recover a payment of interest due upon a promissory note, where process was personally served and defendant appeared, but did not answer, is conclusive evidence against a defence of usury interposed in an action between the same parties, brought to recover the principal of said note. (Lott, Ch. 0., dissenting.)
    (Submitted September 30, 1871;
    decided January term, 1872.)
    This action was brought against defendant, as indorser, to recover the amount of these promissory notes, payable in one, two and three years respectively, with interest semiannually. Defense, usury. Plaintiff proved a judgment, recovered in the District Court for the third judicial district in the city of Hew York, in his favor, against defendant and the maker of the note,, in an action brought to recover a payment of interest due upon two of the notes; the complaint was personally served; defendant appeared by counsel, but no answer was interposed, and judgment was taken by default. All the notes grew out of the same transaction; defendant here offered evidence to prove his defense of usury; objected to by plaintiff upon the ground that defendant was estopped by the judgment in the District Court; evidence rejected. Held, no error, and that the judgment in the District Court was conclusive.
    
      Ra/ndol/ph, Alexander da Green for the appellant.
    
      Samuel Hand for the respondent.
   Hunt, 0., reads for affirmance.

Lott, Ch. C., reads for reversal.

For affirmance, Hunt, Gbay and Eabl, CC.

For reversal, Lott, Ch. 0.; Leonabd, C., not sitting.

Judgment affirmed, with costs.  