The judgment of the court of appeals, in the suit originally instituted in the late court of chancery, between Minott Mitchell, complainant, and Miles Cook and Bhoda his wife, defendants, (a) is not a bar to this action. Ifris not an adjudication between the same parties for the same cause of action. The complainant failed upon his title to the subject in controversy, and not upon the merits, as against the defendants. The bill in that suit was filed by the same plaintiff, against the same defendants, to foreclose the same indenture of mortgage as in the present suit. The plaintiff also, in that action as in this, prosecuted as the assignee of the mortgage security, but the decree of this court was reversed Upon the sole ground that Minott Mitchell was *254not the assignee, and could not maintain his suit in that character. He had furnished the circulating notes of the White Plains Bank, upon an agreement with Elisha Crawford, the mortgagee, that they were to be delivered to the comptroller of the state and the mortgage reassigned for his benefit. With these notes the reassignment was consummated, and the bond and mortgage delivered to Minott Mitchell as his own property. As the comptroller, however, held them under a special statute, for a special purpose, he could do no more than follow the express injunctions of the act and reassign to the person from whom he received them. The facts were not sufficient, in the opinion of the court of appeals, to constitute Minott Mitchell the owner of the bond and mortgage, in law or equity. This is all. The decree was reversed and the hill dismissed, because, without an assignment from Crawford, Minott Mitchell had no standing in court. How when he reappears, with the bond and mortgage and the deed or deeds of assignment in his hands perfect and complete, it cannot be said that the question which he proposes to litigate is res adjudicata.
The judge at the special term found as a fact, that Elisha Crawford, the mortgagee, was an individual banker transacting business under the name and designation of the White Plains Bank. This is a material fact in the case; for if Richard Cadmus was the owner of the White Plains Bank, and the mortgage in question was part of its assets, the case would assume quite a different aspect. I do not see, however, that the court at special term could have reached any other conclusion. The documentary evidence derived from the bank department, the positive testimony of Elisha Crawford, the omission of Cadmus and his assignees to make any claim as owner or proprietor, without referring particularly to the other proof, could hardly leave a doubt of the fact found by the judge. It follows, as a result, that Crawford, and those who held the bank from him, had an undisputed right to assign and deliver the mortgage to Minott Mitchell. He had-*255furnished the circulating notes upon the faith of the agreement that he was to become the owner of the mortgage. The agreement was so far executed that the notes were applied to the uses contemplated, and the bond and mortgage obtained and delivered over to him. And had he made the bank and Elisha Crawford parties to his bill in chancery, and framed it with a view to his equitable title as assignee, I can hardly doubt but that his claim to relief would have been affirmed.
The validity of the alleged payment of $1000, made by Miles Cook on account of the mortgage, on the 1st January, 1846, and for which he holds the receipt of Richard Cadmus, the cashier, depends upon the authority of Cadmus to receive the money. The mortgage is dated on the 4th of September, 1844, and is made to secure the payment of $1400, with the interest, seven years from the date. At the time the money was paid, the mortgage had been assigned to, and was then in the hands of, the comptroller. Of this transfer Cook had full notice, as appears by his written admission of the date of September 10th, 1844, which is amongst the exhibits. It was no part of the cashier’s business to receive the principal moneys secured upon mortgages assigned to the comptroller to assure the redemption of the circulating notes of the bank. Whenever the notes were returned and the security reassigned, it became the property of Crawford, the mortgagee. And as cashier, even then I do not see how Cadmus could have legally accepted the money and discharged the mortgage, without special authority for that purpose. Crawford, as president of the bank, had power from the comptroller, given in pursuance of the 5th and 10th sections of the “ act to authorize the business of banking,” to receive the interest on the bonds and mortgages held for the bank. So Cadmus, by a like power from Crawford, the president, dated January the 21st, 1844, had authority to receive the interest. Cook could hardly have been deluded with the idea that he was making a valid payment upon the mortgage. He knew that neither *256Cadmus, nor the bank of which he was cashier, possessed the bond and mortgage. He knew that the money was not due, and that the sum paid was only a part of the sum secured. When Minott Mitchell advanced the money in the circulating notes of the bank, under the agreement with Crawford that he should receive the bond and mortgage from the comptroller, neither of them had notice, or was aware, that the payment had been made. Surely they are not bound by it. The subsequent tender of the balance of $400, on account of the principal, could under no circumstances be available to discharge the lien of the mortgage, unless the $1000 received by Cadmus was a valid payment.
[Dutchess General Term, May 9, 1859.Brown, Davies and Clerke, Justices.]
I do not think it worth while to pursue the subject further. It was carefully and thoroughly examined, in all its aspects, by the judge at the special term, and his conclusions are in my judgment entirely right.
The judgment should be affirmed.
Reported in 3 Selden, 538.