ANDREWS, J.

The fact that Faunce took the note in nominal payment of the debt of Brown, Pope Co. did not constitute him a holder for value, so as to shut out the defense that the note has been wrongfully diverted by the payee from the purpose for which it was made. It is the settled law of this State, that prior equities of antecedent parties to negotiable paper transferred in fraud of their rights will prevail against an indorsee who has received it merely in nominal payment of a precedent debt, there being no evidence of an intention to receive the paper in absolute discharge and satisfaction beyond what may be inferred from the ordinary transaction of accepting or receipting it in payment, or crediting it on account. The law regards the payment under such circumstances as conditional only, and the right of the creditor to proceed upon the original indebtedness after the maturity of the paper is unimpaired. ( Rosa v. Brotherton, 10 Wend. 85; Payne v. Cutler, 13 id. 605; Stalker v. McDonald, 6 Hill, 93; Lawrence v. Clark, 36 N.Y. 128; Weaver v. Barden, 49 id. 286; Moore v. Ryder, 65 id. 438; Potts v. Myers, 74 id. 594.) If the claim that Faunce, or the insurance company (which has succeeded to his rights merely) can recover upon the note, notwithstanding the fraudulent diversion, rests solely upon the fact that it was received by Faunce in payment of the debt of Brown, Pope Co., it is clear from the authorities cited that it cannot be sustained.

But the plaintiff relies upon another circumstance to sustain the position that it is a holder for value. The original indebtedness of Brown, Pope Co. to Faunce was for premiums on insurance collected by the firm. In January, 1875, Brown, Pope Co. gave to Faunce their check on a bank, in ordinary form, in settlement of the balance then due to him. The check, on presentation, was dishonored, and it was presented to the bank for payment on several subsequent occasions, but was not paid, and it is found that the firm, neither at the time the check was drawn, or at any subsequent time, had funds in the bank out of which the check could have been paid, and that the check was worthless. Faunce held the check until March, when Brown, Pope Co., who in the mean time had received the note in question from the payee, indorsed it over to Faunce in part payment of the debt of the firm, and he, at the time of the transfer, delivered to Brown, Pope Co. their unpaid check.

It is claimed that the delivering up of the check upon receiving the note constituted Faunce a holder for value of the note. Since the case of Coddington v. Bay (20 Johns. 637), it has been the established law in this State, that to constitute an indorsee of negotiable paper a holder for value, so as to exclude the equities of antecedent parties, it is not sufficient that the transfer should be valid as between the indorser and indorsee, but in addition the latter must have relinquished some right, incurred some responsibility, or parted with value upon the credit of the paper at the time of the transfer. In exact accordance with this principle, and upon grounds which are entirely obvious and satisfactory, it has been frequently held that when a creditor takes from his debtor the note of a third person before maturity, in good faith, in payment of, or as collateral security for, the debt, and in consideration thereof, gives up collateral securities held therefor, he becomes, to the extent of the collaterals surrendered, a holder for value of the paper, and takes it free from the defenses of antecedent parties. ( Bank of Salina v. Babcock, 21 Wend. 499; Essex County Bank v. Russell, 29 N.Y. 673; Park Bank v. Watson, 42 id. 490; Chrysler v. Renois, 43 id. 209.)

The question whether the surrender by a creditor to a debtor of the debtor's own note, on taking the negotiable note of a third person, is a parting with value within the rule in Coddington v. Bay, and the subsequent cases, first arose in this court in Youngs v. Lee ( 12 N.Y. 551), where the plaintiffs surrendered to their debtors, on receiving their note, indorsed by the defendant, a prior note of the debtors given for merchandise sold them by the plaintiffs. It was held that the surrender of the prior note constituted the plaintiffs holders for value of the note in suit to the amount of the note surrendered, and entitled them to recover against the indorser, notwithstanding the delivery of the note to them was a diversion of it by the maker from the purpose for which it had been indorsed, the plaintiffs having received it without notice of the diversion. The note surrendered was not due, and this fact is adverted to in the opinion of the court, but that circumstance was not the ground upon which the decision proceeded. In Day v. Saunders (1 Abb. Ct. of App. Dec. 495), the plaintiff, on receiving the debtor's note indorsed by the defendant, which was a diversion from the purpose for which it was indorsed, surrendered four notes of the debtor, two of which were due, and two not due. The court said that there was no distinction in principle between the case of a surrender of notes not due, and of notes due, and reversed the judgment of the court below, founded upon this distinction, holding that the plaintiff was a holder for value of the note in suit, to the full amount of the notes surrendered. The question again arose in Brown v. Leavitt ( 31 N.Y. 113) which was an action against the makers of a promissory note, payable to the order of Zebley Co. and indorsed by them to the plaintiff's testator in part payment of their note held by him, which he surrendered on receiving the note upon which the suit was brought, and other notes, and a balance in money. The defense alleged was fraud on the part of Zebley Co. in obtaining the note, but it was not claimed that the indorsee had notice of the fraud when he received it. The evidence to show the alleged fraud was excluded on the trial, and the plaintiff recovered. This court affirmed the judgment, DAVIS, J., saying: "In this State it is settled by abundant authority that this transaction constituted the plaintiff's testator a holder for value of the note in question. A further discussion of the question might lead to a suspicion that the law was in doubt on this point." In Pratt v. Coman ( 37 N.Y. 440), the court again held that the surrender to a party of his own negotiable note past due, and taking in lieu thereof the negotiable note of a third person, indorsed by the debtor, was a sufficient parting with value, to constitute the indorsee a holder for value of the latter note. The counsel for the defendant, as appears from his printed points, sought to distinguish the case from Brown v. Leavitt, on the ground that in that case it did not appear that the plaintiff on surrendering the note had any remedy on the original indebtedness for which it was given, while in the case then before the court the note surrendered was given for money loaned by the plaintiff who could still recover on the original consideration. But the court in deciding the case disregarded the circumstance relied upon by counsel to distinguish it from Brown v. Leavitt. In Paddon v. Taylor ( 44 N.Y. 371), it was held that the defendant, who had received a warehouse receipt for property fraudulently obtained from the plaintiff in consideration of the surrender to the fraudulent vendee, who was insolvent, of his note, past due, given for money loaned him by the defendant, was a purchaser for value. In Clothier v. Adriance ( 51 N.Y. 322), one Bennett had purchased mowing machines of the defendants on credit, and on settling his account, gave his notes to the defendants for the purchase-money, and also assigned to them as collateral security a mortgage, a life insurance policy of the value of $46.58, and notes purporting to be made by a third party. The mortgage and the notes assigned as collateral turned out to be fictitious and fraudulent. Afterward Bennett by fraud procured the plaintiff to indorse his notes, and turned them out to the defendants in payment of his notes given on the purchase of the machines, and they in consideration thereof surrendered to Bennett his original notes and the collaterals. The court held that the defendants were holders for value of the notes indorsed by the plaintiff. HUNT, Com'r, said: "As the surrender of the notes of Bennett forms a sufficient consideration under our authorities, it is not necessary to discuss the effect of the surrender of the other instruments," citing Brown v. Leavitt, Pratt v. Coman, Day v. Saunders, and Paddon v. Taylor. In Mechanics and Traders' Bank v. Crow ( 60 N.Y. 85), the cases of Brown v. Leavitt and Pratt v. Coman were cited with approval, but the note surrendered in that case was indorsed by a third person.

In view of this long line of authorities it must be regarded as the settled doctrine in this State that the surrender by a creditor of the past due notes of a debtor, upon receiving from him, in good faith, before maturity, the note of a third person, in place of the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold, or money loaned, or under circumstances which would leave the original debt represented by the note in existence, enforceable against the debtor, or whether by surrendering the note, the creditor parted with his entire right of action.

The ground upon which Youngs v. Lee and the subsequent cases proceed is, that the surrender of the debtor's note is an extinguishment of the security surrendered, and that such extins guishment is a parting with value within the principle of Coddington v. Bay. The surrender of a prior note to the maker, under the circumstances of the cases cited, is unequivocal evidence of an intention, on the part of the parties to the transaction, to extinguish the note surrendered, and is equivalent to an express agreement to that effect. That the actual extinguishment and discharge of a prior debt, upon the transfer of a note of a third person by the debtor to the creditor, is a parting with value by the former, was held in Bank of St. Albans v. Gilliland (23 Wend. 311), and Bank of Sandusky v. Scoville (24 id. 115). If these cases are in any respect inconsistent with prior or subsequent decisions of the court, the inconsistency is to be found in the conclusion that the prior debts were extinguished by the transactions in those cases, a conclusion which, it may be thought, was reached upon evidence which, if the dealing had been between individuals, would not, according to other cases, have been sufficient to establish an extinguishment. But it may well be, that by common understanding and usage, when a note is discounted by a bank to take up a prior note held by the bank against the party procuring the discount, and the avails are credited to him, the transaction is to be regarded as an extinguishment of the prior note although it may not have been actually surrendered. ( Slaymaker v. Gundacker's Exr., 10 S. R. 75; Bank of U.S. v. Daniel, 12 Peters, 34; Note to Cumber v. Wane, 1 Smith's Lead. Cases, 458.)

While, therefore, we do not feel at liberty to disturb the rule established by Youngs v. Lee and the subsequent cases, it is quite manifest that the reason upon which they proceed is rather technical than substantial. There seems to be but little ground for holding that the surrender by a creditor of a past due note of a debtor, especially when his remedy upon the original debt remains, is a parting with value within the principle of Coddington v. Bay, and we are not disposed to carry the rule established upon this subject farther than has already been done. We cannot consistently do so if we adhere to the reason of the rule in Coddington v. Bay, which as stated by WOODWORTH, J., is, "that the innocent holder having incurred loss by giving credit to the paper, and having paid a fair equivalent, is entitled to protection."

In this case it is claimed that the surrender of the check of Brown, Pope Co. was the same as the surrender of the debtor's note in the cases cited. We are of opinion that the cases are distinguishable. The check was not given to represent the debt. It was not taken, or intended, as a security for the debt. It was a false token, taken by Faunce in place of money. Brown, Pope Co., by drawing and delivering the check, represented to Faunce that they had funds in the bank upon which it was drawn, out of which, on presentation, it would be paid. They had no funds. The representation was false, and the bank refused to pay the check. It was not a payment of the debt to Faunce, any more than the turning out to him of worthless bank bills on a broken bank would be payment, and returning the check to the drawers was a surrender of nothing of value. It is true that an action on the check against the drawers might have been maintained by Faunce; but they were at all times liable to him for the debt. It is said that the check operated as an acknowledgment of the debt, and that Faunce, having given it up, would be compelled, if now obliged to seek his remedy against Brown, Pope Co., to bring his action on the account, in maintaining which, he would or might meet with difficulties, which he would not encounter if he had retained the check. We think that this is quite too slight a circumstance upon which to found a judgment that Faunce was a holder for value of the note. There is no legal presumption that it would be more difficult to prove a claim upon an account than upon a check; certainly no such presumption can arise upon the circumstances of this case. Our conclusion is, that this action cannot be maintained. It is conceded that Brown, Pope Co. were not holders for value of the note, according to the law of this State. Faunce did not become such holder on the transfer of the note to him. The plaintiff stands in no better position, having simply succeeded to his rights.

The point is suggested on the brief of counsel that the note having been transferred to the plaintiff in Massachusetts the transaction is governed by the law of that State, which, it is said, differs from the law of New York upon the point we have considered. It is sufficient to say that the point was not raised on the trial, and no proof was given as to the law of Massachusetts. We cannot take judicial notice that the law of another State differs from our own. ( McBride v. The Farmers' Bank, 26 N.Y. 450; Leavenworth v. Brockway, 2 Hill, 201.)

The order of the General Term of the Court of Common Pleas, reversing the order of the General Term of the Marine Court, should be reversed, and the order of that court affirmed.

All concur.

Ordered accordingly.