text:
    MART SENFT, Appellant, v. THE MANHATTAN RAILWAY COMPANY, et al., Respondents.

      Practice—Substitution of party plaintiff after trial of case but before submission—Power of the court as to terms and conditions, &c.

    Under section 756 of the Code, an action can he continued under the original plaintiff, notwithstanding the transfer of the property, the subject of the action, to another party. The court could have granted such relief afterwards as the evidence justified, but on the conveyance by such plaintiff to another party (the petitioner below) of the fee of the property in question and his assignment of damages sustained, the court had power to substitute to whom the interests were transferred as plaintiff in the action; and whether or not such substitution should be granted was in the discretion of the court, as were also the terms and conditions on which the substitution should be granted that were necessary to protect the rights of the parties to the action. In the ease at bar, however, the provision in such terms and conditions that no judgment" or relief be granted to the petitioner seeking substitution unless she comply with the conditions of the order, was improper and beyond the discretion of the court, and should be modified, (see opinion) and, as thus modified, should be affirmed without costs of this appeal..
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 6, 1890.
    Appeal from an order of the court at special term setting aside the trial of this action and substituting Mary Senft as plaintiff therein in the place and stead of Christian Senft, and prescribing terms and conditions for such substitution.

      James B. Ludlow, attorney, and Lewis L. Delafield of counsel, for appellant, argued :—
    I. The court erred in setting aside the trial. At the time of the trial the situation was this : Christian Senft had conveyed the real estate to his wife, and had therefore parted with a portion of his cause of action, namely, the cause of action for an injunction ; but he still retained his cause of action for past damages. Under these circumstances he was . entitled to proceed with the trial in his own name, but for the benefit of Mary Senft to the extent of the interest vested’ in her. Section 756 of the Code provides, that “ In case of a transfer of interest * * * the action may be continued by or against the original party, unless the court directs the person to whom the interest. is transferred * * * to be substituted in the action.” Under this section of the Code it has been repeatedly held that even where the plaintiff has assigned his whole cause of action pendente lite the action may, nevertheless, proceed in his name. Cuff v. Dorland, 7 Abb. N. C. 194; Arnold v. Keyes, 37 Super. 135 ; Ford v. David, 1 Bosw. 569, 600 ; Wood v. Kroll, 43 Hun, 330 ; Spencer v. Berdell, 10 N. Y. State Rep. 62. If then the trial may proceed in the name of the original plaintiff notwithstanding a transfer pendente lite of the whole cause of action, there would seem to be no substantial reason why the trial should not proceed in his name when he has assigned but a portion of his interest.
    II. It was error to direct that no judgment should be rendered in favor of Mary Senft, the substituted plaintiff, unless she should sever the action into two, and should serve supplemental complaints in each. It is of course conceded that under section 760 of the Code, the court may, upon substitution of a new plaintiff, impose such terms as to the “ amendment of the pleadings, or otherwise, as the case requires.” But this section only means that the court may direct the framing of a new issue in a case where the substitution of another plaintiff raises some new question which the defendant could not litigate under the original pleadings. The discretion of the court is not unlimited. It can only impose such terms upon the substituted plaintiff “ as the case requires.” In the case at bar upon hearing the motion to substitute Mary Senft as plaintiff, the court found as a matter of fact “ that the said Mary Senft is now vested with the whole cause of action set forth in the complaint in said action.” In view of these facts, the appellant insists that the setting aside of the trial and the conditions imposed as to the service of supplemental complaints are not such conditions “ as the case requires; ” that the rigorous terms of the order exceed the discretion reposed in the court by section 760 of the Code ; and that the making of such an order practically nullifies the provisions of section 756 of the Code.

      Davies & Rapallo, attorneys, and Edwara S. Rapalio and Brainard Tolies of counsel, for respondents, argued :—
    I. No error was committed in setting aside the trial. It had been a trial between Christian Senft and the defendants, and was so regarded by all parties. As a matter of fact there was no issue between Christian Senft, and the defendants, cognizable in a court of equity, he having parted, before the trial, with his interest in the subject matter to which the equitable jurisdiction attached. Under section 756 of the Code, Mary Senft upon acquiring title to this property, had two courses between which to elect: (1) To continue the action in the name of the original plaintiff. This she did not do. She did not have anything to do with the action, until the date of the petition. It does not appear that Mary Senft knew of the trial or of the pendency of the action, until that time. Certainly, the trial was not conducted by her or on her behalf, either nominally or in fact. The counsel for the plaintiff was ignorant of the transfer of title, until long after the trial. (2) To apply to be substituted in the action in place of the original plaintiff. This was the course selected. Upon substitution, the new party takes up the proceedings at the precise point where they stood at the time he acquired his title. He is nobound by the acts of the original party done after that time, unless they were done on his behalf. Moore v. Hamilton, 44 N. Y. 666, 672; Requa v. Holmes, 16 Ib. 193.
    II. It was at least discretionary with the learned judge below to set aside the trial and that- discretion was wisely exercised. The control which the presiding judge has over the conduct of the trial of an equity cause is practically unlimited. Unless that discretion is abused it will not be interfered with. The order now complained of amounted to a direction to strike out all the évidence which had been taken. In view of the irregularity which had characterized the trial, arising, as it did, from a mutual mistake of fact and involving the most serious consequences, it cannot be disputed that the discretion of the trial judge was wisely exercised.
    But his Honor Judge Fbeedman, in making this order, was invested not only with discretionary power as trial judge, but also with ail the discretion of the court at special term to grant a new trial for irregularity. Code of Civil Procedure, §§ 998, 1002.
    III. The appellant cannot complain of the terms imposed by the order, as a condition for permitting her to be substituted as plaintiff. It was discretionary with the learned judge at special term to grant the appellant’s motion to be substituted in place of Christian Senft, and he had a right to impose such terms as he deemed best adapted to the ends of justice. Code of Civil Procedure, § 760 ; Smith v. Zalinski, 94 N. Y. 519 ; Getty v. Spaulding, 58 Ib. 636; Murray v. Gen. Mut. Ins. Co., 2 Duer, 607; Ford v, David, 1 Bosw. 169 ; Banks v. Maher, 2 Ib. 690; Harris v. Bennett, 1 Code R. N. S. 203 ; McGowan v. Leavenworth, 2 E. D. Smith, 24; McNamara v. Harris, 4 Civ. Pro. Rep. 76.
   By the Court.—Ingraham, J.

We think it is clear under section 756 of the Code, that, notwithstanding the transfer of the property to Mary Senft, the action could have been continued by the original plaintiff and the court have granted such relief as the evidence justified. But on the conveyance by such plaintiff to the petitioner, below of the fee . of the property and his assignment of the damages sustained in consequence of the trespass, the court had power to substitute the person to whom the interest was transferred as plaintiff in the action ; but whether or not such substitution should be granted was in the discretion of the court. Getty v. Spaulding, 58 N. Y. 636. And it could grant an application for such substitution on such terms and conditions as were necessary to protect the rights of the parties to the action. If the court in the exercise of such discretion decided that as a condition for the granting of such application certain proceedings already had should be set aside and the action' should be severed so that two distinct causes of action set up in the original complaint should be tried separately, we do not think that the circumstances would justify the court in reversing the action of the special term imposing such conditions.

We do not wish to be understood as questioning the power of the court to have substituted the person to whom the interest of the original plaintiff had been transferred as plaintiff in the action, and then to have proceeded and rendered judgment in the action ; but whether or not the court should adopt such a course was within its discretion. The special term had the right to send the question as to the amount of the damages sustained by plaintiff by reason of the trespass to be tried by a jury, and it had clearly the right as a condition on granting the application for a substitution to require that a trial which had not been completed by the final submission of the case to the trial judge should be set aside.

We think, however, that the provision that no judgment or relief be granted to Mary Senft, the petitioner, unless she comply with the conditions of the order, was improper; that provision should be modified by the insertion of a clause in place thereof, providing that in case the said Mary Senft should fail to comply with the conditions of the order within the time fixed, that the application to be substituted as party plaintiff should be denied, with $10.00 costs, and the order, as thus modified, should be affirmed without costs of this appeal.

Sedgwick, Gh. J., concurred.


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    JOSEPH M. HARCOURT, Appellant v. ELIZA ENNIS, Respondent.

      W7iere the right of recovery is based by the complaint on a specific theory, a recovery cannot be had on another entirely different theory-^Charge, not prejudicial no cause, even if erroneous, for reversal.

    The defendant in this action is the wife of Lawrence Ennis from whom she had obtained a separation a mensa et thoro by a judgment of a competent court, before the rendition of the service hereinafter mentioned, to recover the value of which this action is brought.
    The plaintiff was called in to attend one or more of the children of the marriage, the care and custody of whom had by the judgment of separation been awarded to the defendant. The complaint counted on an express employment by the defendant. The question as to whether there was such employment was submitted to the jury on conflicting evidence who found against the plaintiff.

      Held, (1) that as the right to recover was not based upon the obligation of a parent to furnish necessaries for his infant children, it was, therefore, not necessary to determine what, if any, obligation rested upon the defendant to supply her children with necessaries or whether the father was relieved from that obligation in consequence of the judgment for a separation.
    (2). The remarks of the judge on the subject of presumption of agency could not have prejudiced the defendant, and there was no error which required a reversal.
    Before Sedgwiok, Oh. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Appeal from judgment entered on verdict of a jury for the defendant.
    At the close of the evidence, the judge charged:—■ “I charge you that the defendant is not liable for the services rendered to those children except as she specially contracted to pay for them, if she did so contract, with this physician, the plaintiff.
    “ If you find that she did make a contract with the physician that she would pay for the services, then she is liable, and yon can find for the physician such an amount as you think would be a fair and reasonable compensation for his services rendered in treating that child.” To which charge defendant’s counsel excepted.
    Plaintiffs counsel then asked the court to charge that the decree of divorce having awarded the custody of the children to the wife, the husband was not liable, as matter of law, for the medical attendance of those children.
    The court refused to so charge.
    Plaintiffs counsel excepted.
    The court then charged : “ The wife, in ordering a physician to attend these children in time of illness is presumed to be acting as the agent of the husband, even though there is a separation between them, if she has the custody of the children.”
    To which charge plaintiff’s counsel excepted.
    The facts out of which the charge, the requests, the refusals and exceptions sprang, are set forth in the opinion.

      L. B. Bunnell, attorney and of counsel, for appellant, argued :—
    Even where the husband is bound to furnish support, there must be some abandonment of the child on the part of the father, or a failure, or refusal, to furnish the support, on demand, or request, to that effect, or some .other substantial omission of duty on the part of the father to the prejudice of the child, before the mother can step in and subject him to an action at her suit. Burrett v. Burrett, 29 Barb. 129 ; Rolf v. Abbott, 23 E. C. L. R. 400 ; Raymond v. Loyl, 10 Barb. 483 ; Chilcott v. Trimble, 13 Ib. 502. The rulings of the trial judge were upon the theory that the wife was the agent of her husband, even though she was separated from him by a judicial decree which required the husband to pay and he actually did pay, weekly, all that the court had adjudged to be a proper sum for the support of herself and children. The supreme court held in the case of Baker v. Barney, 8 John. 72, following the case of Todd v. Stokes, Salk, 116, that where the husband and wife separated by mutual agreement, that the husband was not liable for necessaries furnished the wife, and the court held in Hunt v. De Blaquire, 5 Bing. 550, that the same rule applies where the husband and wife are separated by a decree a mensa et thoro, with an allowance to the wife for alimony. Assume that the theory of the judge was correct. Then could the defendant pay for these necessaries, and recover the same from her husband. But the court say, in Burrett v. Burrett, 29 Barb. 129, that this she cannot do. That a divorced wife, under these circumstances stands in no better position than a stranger.
    As a general proposition, and during the continu- - anee of the marital relation, it must be conceded that the husband is liable for the support of the child, but connected with this is the co-relative right to the care, custody, control, services, education and society of his offspring. 29 Barb. 129, supra ; Fitch v. Fitch, 22 Conn. 411 ; Sargeant v. Dunniston, 5 Cow. 106; Hewett v. Price, 21 Wend. 79. It would be not only an oppressive exercise of power, but an outrage upon justice itself, to withdraw a child wholly from the care, control and influence of the father, to deprive him of its presence, society and aid, to put it entirely in the possession and control of the mother, and then require the father, in addition to paying all that the court deemed proper towards her support, require him to pay all the debts she might see fit to contract. The law of nature, which requires a parent to support his infant offspring, designates his own house as the place where that duty shall be performed. 13 Barb. 501, supra.

      Edward J. Dunplvy, attorney, and T. B. Clarkson of counsel, for respondent, argued :—
    In the points or clauses in the charge to which exception was taken by the plaintiff, the law was correctly stated to the jury by the judge, and there was no error in the refusal to charge as plaintiff requested. Kent Com. vol. 2, marginal pp. 191, 193 ; 13 John, 480 ; 26 Hun, 148 ; Code Civil Procedure, §§ 1766-, 1771.
   By the Court.—Ingraham, J.

The complaint in this action alleges, that the plaintiff rendered services as a physician and surgeon for and at the request of the defendant, and that such services were reasonably worth the sum of $245.50. The answer denies these allegations, and alleges, that the services, if. any, mentioned and referred to in the complaint, were rendered to one Eugene Ennis, the infant son of this defendant and her husband Lawrence Ennis, at the request of said Lawrence Ennis.

It appeared in evidence that prior to the time .the services sued for were rendered, an action had been brought by defendant against her husband fór a separation, and a judgment had been entered whereby it was adjudged that the plaintiff and the defendant in that action be separated from bed and board ; that the custody of the children be awarded to the defendant and that the husband of the defendant pay to his wife the sum of $15.00 per week as a suitable allowance to the said Eliza Ennis for her support, and that, in pursuance of such decree, the defendant lived separate and apart from her husband. No provision appears to have been made by the decree for the support of the children ; but the decree provided that the defendant’s husband should pay “ for all necessary and suitable clothing, etc., for the above-named children of the plaintiff and defendant, and also for the proper education of said children at a school or schools to be selected by the said plaintiff; and that the said plaintiff shall in no event be required to pay out of the allowance hereinbefore granted to her, the expenses incurred in providing suitable clothing, etc., and for the proper education of the children or any part thereof.”

The obligation of the defendant to pay for the services rendered by plaintiff is, by the complaint, based upon her express agreement; and to entitle plaintiff to recover he must show that such an agreement existed. The right to recover is not based upon the obligation of a parent to furnish necessaries for his infant children, and it is not necessary, therefore, to determine what, if any, obligation rested upon the defendant to supply her children with necessaries, or whether the father was relieved from that obligation in consequence of the judgment for a separation. It appeared that prior to the first visit by the defendant, the father called upon him and requested him to visit the children, and that the services for which this action was brought were rendered subsequent to such request. The plaintiff testified that on his second visit he told the defendant it was a serious case ; that it would require a great deal of attendance, and that it would put him to a great deal of inconvenience ; that she said, “that she knew that, but that she would settle it herself ; she would pay for it herself.” This conversation the defendant denied. She said that after the child was taken sick she sent to her husband and asked him to send a doctor, and nothing was ever said between herself and the doctor as to who should pay.

The court submitted the question to the jury as to whether the defendant made the contract testified to by plaintiff, and the jury, by -their verdict for the defendant, found that the contract as claimed by plaintiff was not made.

It, therefore, appears that the original request to the plaintiff to render the services came from the husband, the father of the children, and it was in compliance with such request that the services were rendered ; for such services the father only is liable. Some visits appear to have been made subsequently, in September, 1876, but there is no evidence that such services subsequently rendered were at the defendant’s request, or that she agreed to pay therefor.

In the absence of an express agreement by the defendant to pay for the services rendered, we do not think that the defendant was liable in this action, and the jury, by their verdict, having found that no such agreement existed, there is no theory upon which the plaintiff could recover. The remarks of the court, therefore, as to the presumption that the defendant acted as the agent of the husband were entirely immaterial, and could not have prejudiced the defendant.

We think, therefore, that no error was committed that requires a reversal of the judgment, and that the judgment and order denying the motion for a new trial should be affirmed with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    LEOPOLD BEYER, Appellant, v. PHILIP BRAENDER, Respondent.

      Vendee of real estate, when action by to recover money paid on account of purchase, not maintainable.

    Where a vendor of real estate is ready and able on the day specified in the contract of sale for its completion to give a good and marketable title, and tenders to the vendee the deed called for by the contract and demands the payment of the purchase money, and the vendee refuses to take the property, accept the deed and make the payment, on the ground that the vendor cannot give a good and marketable title, the vendee cannot maintain an action to recover the sum paid to the vendor at the time of the making of contract pursuant to its terms on account of the purchase money, without showing that the vendor had waived his right to demand performance on the law day, and his right acquired by such tender, demand and refusal, to retain the sum so paid and had left the closing of the contract open, and while it was so open had either put it out of his power to give, or had on demand refused to give title.
    In the case at bar, defendant was able and ready on the law day to give a good and marketable title; he on that day tendered the deed called for by the contract and demanded the purchase money; plaintiff absolutely refused to take title, accept the deed, or make payment. No waiver by defendant of any of his rights, nor any leaving open the closing of the contract was shown; but it was shown that before the commencement of the action defendant had put it out of his power to give title to plaintiff. Held, that plaintiff could not maintain this action, which was to recover from defendant the sum of money paid on account of the purchase money under the terms of the contract at the time it was entered into.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided January 6, 1890.
    Exceptions taken by the plaintiff to the dismissal of the complaint ordered to be heard in the first instance at the general term.

      Martin & Smith, attorneys, and George A. Strong of counsel, for appellant, on the questions considered in'the opinion, argued :—

      I. Assuming that the title was good, plaintiff is nevertheless entitled to recover back his deposit, if defendant was liable to an action for specific performance, at the time when he divested himself of the title, and thus became unable to carry out the contract. That is to say, a vendee may recover back his deposit upon the same showing which would have entitled him, had the vendor remained owner of the land, to a decree for • a specific performance. Meth. Epis. Church v. Thompson, 108 N. Y. 618. This is a proposition which commends itself by its fairness and logic. So long as the vendee may still call for the land, and compel its conveyance, it cannot be that the vendor may divest himself of the title, and then urge this as a reason for confiscating the deposit. We shall, therefore, submit two reasons why, at the time when defendant sold this land, plaintiff had not yet lost the right to require a conveyance of it.
    II. There never was an absolute, but only a qualified, or conditional, refusal by plaintiff to perform, and a refusal that was justified. This gives no right to the vendor to forfeit the vendee’s deposit. The vendee’s counsel prior to Oct. 10, 1888, the law day, informed the vendor’s counsel that he had doubts about the title. On the 10th the vendee’s counsel asked for an adjournment of “ a few days,” as he was not satisfied with the title, but, as at present advised, would reject it. Willis v. Dawson, 34 Hun, 492. When this request was refused, and not till then, plaintiff’s counsel refused to take the deed. That does not change the character of the refusal. It was still a refusal to perform, because the vendee needed a few days more to consider and investigate the question as to the title. These facts bring the case within Davison v. Associates, 71 N. Y. 337-8.
    III. Had defendant, on Oct. 10th, acquired a right to forfeit plaintiff’s deposit, without further ceremony, he lost that right by what subsequently occurred between the parties. These facts show that negotiations had been resumed between the parties. The one claimed that his title was good, and urged acceptance of it; the other claimed that it was bad, and called for a return of the deposit, offering to divide the expense of searching the title. Whichever was right in his claim, the resumption of negotiations opened the whole matter once more, and waived any previous forfeiture, if one existed. Not a case can be found to the contrary, holding that after this the vendor could suddenly, without any warning, revert to the previous forfeiture, sell the land, and pocket the deposit. The authorities are directly the reverse. Myers v. De Mier, 52 N. Y. 648; Walton v. Meeks, 41 Hun, 316; Dillon v. Masterton, 39 Super. Ct. 136.

      Bartlett, Wilson & Hayden, attorneys, and Philip L. Wilson of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. After the plaintiff,' on the 10th day of October, 1888, refused to receive the deed, which defendant tendered, defendant had a perfect right to sell this property. Ketchum v. Evertson, 13 Johns. 359; Page v. McDonnell, 55 N. Y. 299; Smith v. Rogers, 42 Hun, 114; Simon v. Kaliske, 6 Abb. N. S. 224.
    II. The plaintiff cannot recover in this action, unless he shows that there was a reasonable doubt as to the title of the defendant. Methodist E. Ch. Home v. Thompson, 108 N. Y. 618.
    III. It is a perfectly recognized principle that a default may be waived, and that courts of equity may relieve in many cases from the effects of a default and decree specific performance, but it is in an action where plaintiff comes into court seeking to perform his contract, alleging his present willingness and excusing his past. default. Such are the cases cited on plaintiff’s brief below. Davidson v. Associates, 71 N. Y. 833; Myers v. DeMeir, 52 Ib. 647; Dillon v. Masterton, 39 Super. Ct. 133. The complaint fails to show that plaintiff was ever ready or willing to perform, or that defendant ever refused to perform—it rests, and must rest, on the allegation that defendant was unable to give a good and marketable title.
    IV. What took place subsequent to the law day is to be regarded as an effort, if possible, to avoid a lawsuit in way of a compromise, and may be held as an indication of willingness on part of defendant to convey if plaintiff will re-consider, but plaintiff refuses. In Coddington v. Wamsley, 1 Hun, 585, affirmed 60 N. Y. 644, last page of opinion the court says : “ The expression of willingness by the defendant, after expiration of the specified time to sell to plaintiff, but without extension of the time specified in the agreement, and in the absence of any new agreement, is no waiver as to him.”
   By the Court.—Ingraham, J.

The contract for the sale of the property was to have been performed on the 10th of October, 1888, and on that day counsel for the purchaser requested further time to examine the title to the property, which being refused, counsel for the vendor tendered a warrantee deed of the premises in question and handed the same to the counsel for the vendee who examined it and handed it back to the counsel for the vendor saying: “We decline to accept this deed. We refuse to take this title. I do not consider that Mr. Braender has a good and marketable title to these premises,” to which counsel for the vendor replied: “ Very well, we stand upon our contract and our title.”

Subsequent to that time the counsel for the respective parties had correspondence as to the purchaser accepting the title, but on October 20th, 1888, counsel for the vendee stated that he could not take the title, and then proposed to cancel and rescind the contract, and that the defendant should repay the $1,000 which had been paid on the execution of the same, and pay $100 for the examination of the title, which was refused; and this action is brought to recover the amount paid on the execution of the contract.

At no time did the plaintiff ever ofier to perform, nor does it appear that he was ever able to perform, his contract. He rests his refusal solely in a defect in the title. It was not claimed on the argument before us that the defendant’s title was defective or not marketable. It further appeared that on the 18th of October defendant had executed a contract to sell the same premises to another person, which contract was finally completed by the delivery of a deed on the 30th of October of the same year.

To entitle plaintiff to recover in this action, he must show that the defendant failed to complete his' contract; the defendant must be in default.

The facts, however, conclusively show, that the defendant was not in default, but that it was the plaintiff who was in default. Defendant was ready to complete his contract, deliver a deed of the premises on the day that the contract was to be completed and from that time down to the 30th of October, when he conveyed the premises to another purchaser, could have at any time complied with his contract. On the refusal of the plaintiff to accept the deed on the 10th of October, the defendant was justified in assuming that the plaintiff had broken the contract and treated it as at an end, and that followed by the absolute refusal to accept the title on'the 20th of October, and the demand for the repayment of the money paid on the execution of the contract and the damages sustained by the plaintiff was a final breach of the contract. The subsequent letters between counsel for the parties did not in the slightest degree change the relations that then existed. The request in the letter of October 25th, was merely for the sale of another house, and had nothing to do with the premises in question.

The exceptions should, therefore, be overruled and judgment ordered on the verdict, with costs.

Sedgwick, Ch. J., and Fbeedman, J., concurred.


author: Pee Cubiam.

text:
    JAMES P. KERNOCHAN, Individually and as Executor, etc., et al., Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Evidence—Testimony of experts as to value of real estate in action for an injunction and damages because of the construction and maintenance of the elevated railroad of defendants in front of plaintiffs’ premises.

    One of the real estate expert witnesses of plaintiffs was asked by plaintiffs’ counsel on the trial to give the rental value of the premises with and without the elevated railroad, for the years 1883 to 1888, both inclusive. Counsel for defendants objected to the question as incompetent, irrelevant and immaterial, and not within the issues of the action and a proper method of proof. The court overruled the objection, and counsel for defendants excepted, and the witness answered the question fully and in detail.

      Held, on appeal, That the question as to the value of the premises at the time was clearly competent. The attention of the court was not called to the objection now urged, that the portion of the question that required the witness to give his opinion as to the rental value of the premises without the elevated railroad was incompetent, and no motion was made to strike out any portion of the answer of witness after it was given, and considerable testimony was subsequently given on the same subject by both plaintiffs and defendants without objection. Under these circumstances the objection to the question in the form it was taken was unavailing, and the
    ■ ruling of the court thereupon sustained.
    Before Sedgwick, Ch. J., and Ingbaham, J.

      Decided January 6, 1890.

      Appeal from a judgment entered upon the decision of the court at special term.

      Davies & Rapallo, attorneys, and Edward S. Rapallo and Samuel B. Rogers of counsel, for appellants, argued:—
    I. The learned trial judge erred in receiving as evidence the opinion of a witness as to the difference in the rental value of the premises in question with and without the elevated' railroad. Edmund H. Martine, a real estate broker, after testifying to the rental value of the property in question in 1876 and 1877, was asked: “ Q. Give the rental value for the following years with and without the road ? Counsel for defendants objected to the question as incompetent, irrelevant and immaterial and not within the issue in this action, and not a proper method of proof. The court overruled the objection, and counsel for defendants duly excepted. A. With the road from 1883 to 1884, $2,550. Without the road, $3,570. In 1884, $2,640 with the road, and $3,600 without it, etc.” We submit that the testimony excepted to was incompetent for the following reasons: (1) It involved the very question of damages to be determined by the trial judge. Van Deusen v. Young, 29 N. Y. 9; Teerpenning v. Corn Exchange Ins. Co., 43 Ib. 279; Giles v. O’Toole, 4 Barb. 281; Norman v. Wells, 17 Wend. 136; Thompson v. Penn. R. Co., 15 Atl. Rep. 833; Crane v. Northfield, 36 Vt. 124; Railway Co. v. Gardner, 45 Ohio St. 309. (2) It was a question upon which an intelligent judgment could be had without resort to such opinions. Drucker v. Manhattan R. Co., 106 N. Y. 157; Ferguson v. Hubbell, 77 Ib. 514; Reed v. McConnell, 101 Ib. 270; Wakeman v. Wheeler & W. Mfg. Co., 101 Ib. 205. (3) It was a matter of mere speculation and conjecture such as is not involved in any science, art, trade or occupation known to mankind. Ferguson v. Hubbell, 97 N. Y. 514; Wesson v. Washburn Iron Co., 13 Allen, 95. The evidence being in its essential nature incompetent and adapted to mislead, it is impossible to say to how great an extent the defendants were injured thereby, and, within the principle of Foote v. Beecher, 78 N Y. 155, the error cannot be disregarded.
    II. The defendants were harmed by the admission of the expert testimony as to what this property would have been worth had the railroad not been built. We assume that it is now settled that the evidence in question is plainly inadmissible under the recent decision of the court of appeals in the case of McG-ean v. Manhattan Railway Company. The sole question, under the decision of the court of appeals in that case, is whether the appellant was harmed by the admission of such testimony.
    6r. Willett Van Nest, for respondents, argued :—
    As to Foote v. Beecher, 78 N. Y. 155, the question is now settled by statute. The code provides (§ 1003): “ An error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion that substantial justice does not require that a new trial should be granted.” The note .to Bliss’ code states that the rule of Forrest v. Forrest is hereby adopted. In matter of N. Y; C. & H. R. R. Co., 90 N. Y. 347, the court says : “ The rule is well settled that in an equity case a new hearing will not be granted or judgment reversed merely on the ground that proper evidence was rejected at the trial, if on all the facts and circumstances the court is satisfied, the result ought not to have been different if such testimony had been received.’’ The objection to Martine’s testimony is of no avail, as it is not disputed that the plaintiff was entitled to the evidence as to the value with the road. An objection should be taken to the part of the question which was improper, if any. Hochreiter v. People, 2 Abb. Ct. of App. 363; Mayor v. Secord, 102 N. Y. 582. No question arises in this case under the McGrean case. The only objection to the question asked Martine was that his estimate included damages by noise and other incidents than light and air.
    There was no objection to plan. The plaintiffs were entitled to Martine’s estimate of the value with the road. The defendants should have objected specifically to the part asking the value without.
   Pee Cubiam.

All the questions presented on this appeal have been passed upon by the general term of this court adversely to the defendants, except the objection to the question put to one of the experts called by the plaintiffs, whereby the witness was requested to “ give the rental value for the following years with and without the road.”

To that question the defendants objected as “ incompetent, irrelevant and immaterial, and not within the issues of this action and not a proper method of proof.”

The objection was to the whole question, and so' far as the question required the opinion of the witness as to the value of the property at the time, the evidence was clearly competent. The attention of' the court was not called to the objection now urged, that the portion of the question that required the witness to give his opinion as to the rental value of the premises without the elevated railroad was incompetent, and no motion was made to strike out any portion of the answer after it was given. Considerable testimony was subsequently given on the same subject by both plaintiffs and defendants without objection.

Under these circumstances we think the objection in the form it was taken was unavailing. An examination of the whole case has satisfied us that the findings are sustained by the evidence, and the result would have been the same if the evidence now objected to had not been received.

We think, therefore, that no error was committed that requires a reversal of the judgment, and that the judgment should be affirmed with costs.


author: By the Court.—Sedgwick, Ch. J.

text:
    EDITH K. ROOSEVELT, and Another, Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Action for injunction and damages against defendants for constructing and operating its railroad in front of plaintiffs' premises—Objections to opinion of real estate expert, what should be the form of same to be covered by the McGean Case.

    The following questions were put to a real estate expert witness on the trial; “What, in your opinion, would, be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them ; and what, in your opinion, would be the value of those premises if .there were no elevated railroad in front of them ? ” These questions were objected to on the grounds that they were hypothetical; that the witness was not competent to give an opinion, and also that they were immaterial and incompetent; and the objections were overruled by the court, and counsel for defendants excepted; and the answers of the witness were taken.

      Held, on appeal, that prior to the decision in the McGean Case, in the court of appeals, it was held under many decisions that such questions were admissible, and that the opinion of a witness, who has seen the premises in question and is acquainted with similar property and things, is not incompetent for submission to a court or jury. In the McGean Case, the court of appeals held, that objections like those taken in this case to like questions, did not apprise the court that defendants meant to object on the ground that the questions called for what the judge was to determine upon other testimony in the case. The questions in the ease at bar were not objectionable, therefore, on any ground taken at the trial.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1890.
    Appeal by defendants from judgment entered upon the decision at special term.

      Davies & Eapallo, for appellants, argued upon the single exception considered by the court, as follows :—
    The learned trial judge erred in admitting as evidence the opinions of Nelson S. Flock as to what would have been the fee and rental value of the premises in question without the elevated railroad in front thereof. The witness was asked the question : “ What in your opinion would be the rental value of those premises No. 97 Pearl street to-day, if there were no elevated railroad in front thereof ? Counsel for defendants objected to the question as hypothetical, and also on the ground that the witness is not competent to give an opinion ; and also objected to the question as immaterial and incompetent. The court overruled the objection and counsel for defendants duly excepted.” And again the witness was asked the question—“ What in your opinion would be the value of those premises if there were no elevated railroad in front of them ? Objected to as hypothetical, that the witness is not competent to give an opinion, also as immaterial and irrelevant. Objection overruled. Exception taken.”
    We submit that the testimony excepted to was incompetent for the following reasons : (1) It involved the very question of damages to be determined by the trial judge. Van Deusen v. Young, 29 N. Y. 9 ; Teerpenning v. Corn. Exchange Ins. Co., 43 Ib. 279 ; Giles v. O’Toole, 4 Barb. 281; Norman v. Wells, 17 Wend. 136 ; Thompson v. Penn. R. R. Co. 15 Atl. Rep. 833 ; Crane v. Northfield, 33 Vt. 124 : Railway Co. v. Gardiner, 45 Ohio St. 309. (2) It was a question upon which an intelligent judgment could be had without resort to such opinions. Drunker v. Manhattan R. Co., 106 N .Y. 157 ; Ferguson v. Hubbell, 97 Ib. 514 ; Reed v. McConnell, 101 Ib. 270; Wakeman v. Wheeler & W. Mfg. Co., 101 Ib. 205. (3) It was a matter of mere speculation and conjecture, such, as is not involved in any science, art, trade or occupation known to mankind. Ferguson v. Hubbell, 97 N. Y. 514 ; Wesson v. Washburn Iron Co., 13 Allen, 95. In view of these authorities we submit that the opinions of witnesses upon this point were not competent evidence. The evidence being in its essential nature incompetent and adapted to mislead, it is impossible to say to how great an extent the. defendants were injured thereby and within the principle of Foote v. Beecher, 68 N. Y. 155, the error cannot be disregarded. We assume that it has been settled that the evidence in question is plainly inadmissible under the recent decision in the court of appeals in the case of McGean v. Manhattan Railway Company. The sole question in that case is whether the appellant was harmed by the admission of such testimony.

      G. Willett Van Nest, for respondents, argued, upon the single exception considered by the court, as follows :—
    I. Flock was competent as an expert. He had great experience in real estate, renting a great deal of downtown property. As has been shown in other cases, if the trial court admits an expert, the appellate court will hold that his qualifications were properly determined by the trial court. Jones v. Tucker, 41 N. H. 546; Nelson v. Sun Mutual, 46 N. Y. 460 ; Swan v. Middlesex, 101 Mass. 177. An expert acquires his information by researches of all kinds. A man whose business it is to rent property can say how much any building should bring in a given neighborhood. The plaintiff was unable to find a real estate expert who had rented property in this neighborhood. All the buildings were rented by the owners or by agents who refused to give up any time to testifying.
    II. It was proper to ask Flock what, in his opinion, would have been the value had there been no road. Clark v. Baird, 9 N. Y. 196 ; Vanderberg v. Boston, 21 W. D. 474 ; Shaw v. City of Charleston, 2 Gray, 107 ; Shattuck v. Stoneham, 6 Allen, 116 ; Swan v. Middlesex, 101 Mass. 178 ; Snow v. Boston & Maine, 65 Me. 230 ; White Deer v. Sassaman, 67 Pa. St. 415 ; Carter v. Thurston, 58 N. H. 104 ; Portland v. Inhabitants, 23 Eng. and Am. Railway Ca. 51 (N. H.); Yost v. Curry, 92 Ind. 469 ; Galena v. Haslam, 73 Ill. 497 ; Keitsburg v. Henry, 79 Ib. 290 ; City of Chicago v, McDonough, 112 Ib. 90 ; Colvill v. St. Paul, 19 Minn. 285 ; Lehmicke v. St. Paul, 19 Ib. 481 ; Sherman v. St Paul, 30 Ib. 227; Snyder v. Western Union, 25 Wisc. 67 ; Worster v. Sugar River, 57 Ib. 314 ; Telephone T. Co. v. Forke, 2 Texas C. C. (Willson), § 365 ; Texas v. Kirby, 44, Ark. 106; Railroad v. Fireman, 24 W. Va. 673 ; Matter of Rochester, 40 Hun. 588 ; Hine v. N. Y. Elevated R. R., 39 Ib. 295 ; Rochester v. Budlong, 10 How. 289. There is a dictum of five lines in a long opinion in McGean v. Manhattan Ry. Co., to the effect that if the question were objected to on the specific ground that the amount of damages could not be proved by the opinion of a witness, it should not be allowed. It was merely a dictum because the judgment was affirmed, the question having been objected to on the ground that it was incompetent, irrelevant and immaterial, and also that it was hypothetical. The dictum should have no authority. The only brief submitted on this point was in behalf of the Manhattan Railway Co. That brief cited all the decisions against the admission of the question, but neither the brief nor the opinion refer in anyway to the authoritative decisions to the effect that the question is admissible. The question must be specifically objected to on the ground that the opinions of witness are not admissible as to the value which the property would have without this structure.

       The conclusion seems to be, that if the objections had been that the questions called for what the judge was to determine on' the trial upon other testimony in the case, that they should have been sustained and the testimony excluded.—Meptrs.

   By the Court.—Sedgwick, Ch. J.

This was an action to enjoin the defendants from maintaining and operating their railway in front of plaintiffs, premises and for damages.

The only exceptions to be considered are those taken to the admission of the following questions; “ what in your opinion would be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them? and, what in your opinion would be the value of those premises if there were no elevated railroad in front of them ? ”

Before the decision of McGean v. Manhattan Ry. Co. in the court of appeals, it was generally supposed that such questions were admissible under the general rule given by Greenleaf, § 440a, “ as to the marketable condition and value of property, etc., opinions are received. Section 440 gives a pertinent case. A secretary of a fire insurance company accustomed to examine buildings with reference to the insurance of them, and who, as county commissioner, had frequently estimated damages occasioned by the laying out of railroads and highways, has been held competent to testify his opinion as to the effect of laying a railroad within a certain distance of a building upon the value of the rent, etc.”

In Clark v. Baird, 9 N. Y. 183, in an action for false representations, in defendant’s saying that land bought of him by the plaintiff extended to a described distance, it was held, that the testimony was valid, of a witness who swore that the land was worth $1,000 if it extended to the mill-race and trees. The strip taken off would reduce it one-fourth. This testimony had been objected to on the ground that the amount of damage cannot be ascertained by the opinion of the witness. Judge Johnson examined many cases, and among them cases that had maintained that it was a sufficient objection to such testimony, that the thing testified to was a matter that should be determined by the jury or judge. The rule was announced that the opinion of a witness, who has seen the thing in question and is acquainted with similar things, is not incompetent to be submitted to a jury.

Professor Chase in his edition of Stephens’ Dig. Ev. in Yol. 2, p. 102, gives an important list of cases on this subject.

In the case of McGrean (supra), the court of appeals has held that specific objections, like those taken in this case to like questions, did not apprise the court that defendants meant to object, on the ground, that the question called for what the judge was to determine upon the other testimony in the case. The objections taken on the trial in the case at bar were, that the questions called for immaterial and incompetent testimony; that the witness was not competent to give an opinion, and that the question was hypothetical. The questions were not objectionable, therefore, on any ground taken at the trial.

The judgment should be affirmed with costs


author: By the Court.—Sedgwick, Ch. J. Bt the Court.—Sedgwick, Oh. J. Ingraham, J., (dissenting.)

text:
    ENOCH H. GURNEY, Respondent, v. UNION TRANSFER AND STORAGE COMPANY, Appellant.

      Action to compel the issue of a certiñcate of capital stock by defendant to plaintiff—Allowance additional to costs within the discretion of the court; also that of a stay without security.

    Plaintiff claimed that he was entitled to a certificate of capital stock from the. defendant to the nominal amount of $3,658.14, under the following resolution of its board of directors, adopted June 16, 1888. “ Whereas, it has appeared to the satisfaction of the company and of Mr. Gurney that the estimated value of the plant and accomits offered by Mr. Gurney for his stock was too high ; and whereas, the company has assumed certain additional liabilities of Mr. Gurney, as set forth in his accounts to date, it is hereby mutually agreed between the company and Mr. Gurney that in consideration of the less value paid in by Mr. Gurney, as above stated, and the additional liabilities assumed by the company as aforesaid, he, the said Mr. Gurney, shall be entitled to $3,658. 14r-100 dollars’ worth of the company’s stock par value, and the rest of the $10,000 be transferred into the treasury. It is further agreed that all further errors found in the accepted accounts from him shall be a charge against his stock. This settlement includes the two hundred and seventy-four 38-100 dollars already agreed upon as consideration in the purchase of the good-will of Mr. Gurney’s business.
    The principal difference between the parties relates to the meaning of the phrase in the resolution “ that all further errors, etc., shall be a charge against his stock;” defendant claimed that the errors alluded to, included an erroneous estimate of the value of the accepted accounts as well as mistakes of computation, etc.; plaintiff claimed that the errors were only such as errors in accounting like mistakes of fact or calculation. The court below, while agreeing with plaintiff’s construction, nevertheless allowed defendant to give full proof of what defendant claimed to have been an erroneous estimate of the value of the accepted accounts, and afterwards held that the defendant failed to prove that the valuation was erroneous. The mistakes of statement and computation in the accounts that were proven by defendant, -fcere deducted by the court from the amount of stock agreed to be issued, and the court found that the plaintiff was entitled to receive a certificate for $3,600 worth of defendant’s capital stock of the par value of $100 per share ; and ordered judgment accordingly, with an additional allowance of costs.
    On a review upon appeal held, that there was no error during the trial and the judgment should be affirmed.
    On the appeal from the order denying defendant’s motion to strike out from the judgment the provision for an additional sum as costs, and for a stay of proceedings on the judgment, Held, that the action involved the right of plaintiff to shares and a certificate of the same as evidence of ownership, and the value was shown by the evidence in the case. It was within the discretion of the court to make or to refuse to make an additional allowance by a provision in the conclusions of law in an equity case, and it was also within its discretion to refuse to stay the proceedings without security from defendant.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1890.
    Appeal from judgment entered upon findings, etc., at special term.
    The questions involved and the facts in the case sufficiently appear from the opinions.

      Henry C. Andretos, for appellant.

      A. C. Fransioli, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was brought to compel the defendant to iesue to plaintiff a certificate, that he was entitled to shares of capital stock of the defendant to the nominal amount of $3,658.14 under a resolution of the board of directors made June 16, 1888.

The resolution was : “Whereas, it has appeared to the satisfaction of the company and of Mr. Gurney that the estimated value of the plant and accounts offered by Mr. Gurney for his stock was too high ; and whereas, the company has assumed certain additional liabilities of Mr. Gurney, as set forth in his account to date, it is hereby mutually agreed between the company and Mr. Gurney that in consideration of the less value paid in by Mr. Gurney, as above stated, and the additional liabilities assumed by the company as aforesaid, he, the said Mr. Gurney, shall be entitled to $3,658.14 worth of the company’s stock, par value, and the rest of the $10,000 be turned into the treasury. It is further agreed that all farther errors found in the accepted accounts from him shall be a charge against his stock. This settlement includes the $274.38 already agreed upon as consideration in the purchase of the good-will of Mr. Gurney’s business.”

The plaintiff had judgment that the defendant issued to him stock to the nominal amount of $3, . 600.

The principal difference between the parties relates to the meaning of the phrase “ all further errors found in the accepted accounts from him shall be a charge against his stock.” The plaintiff does not deny that the amount of “ further errors ” should be deducted from the amount of shares of stock first mentioned, that is $3,658.14, and that the company was bound to issue certificates of shares only to the amount of the difference. The dispute relates to the meaning of the words “ farther errors found in the accepted accounts from him.” The defendant argues, that the errors intended included an erroneous estimate of the value of the' accepted accounts, as well as mistakes of statement or computation in the accounts, which would make them erroneous as accounts. The plaintiff argues, that the errors were only such as make errors in accounting like mistakes of fact or calculation. The court agreed with the plaintiff, but, nevertheless, allowed the defendant to give full proof of what the defendant claimed to have been an erroneous estimate of the value of the accepted accounts. These accounts related to the business of the plaintiff as warehouseman, and were statements of the amounts due to him by third parties for storage. As security for the payments of these amount's were the goods stored. To show the value of .these accounts, the defendant sold, under the statute, the goods stored. Assuming that the proof on this subject showed the value of the security, there was yet to be ascertained the value of the original obligation of the owners to pay the storage. There was no proof on this point. As the case stood, the owners remained liable for the amount of the storage, less the value received upon the sales. The presumption of law is, that these owners were solvent, and could be made to respond. The defendant, therefore, failed to prove that the valuation of the resolution was erroneous.

The defendant did prove that there were mistakes of statement and computation in the accounts. The court deducted from the amount agreed to be issued, these mistakes.

The learned counsel for defendant argues that under the complaint and resolution, there could be on a view unfavorable to the defendant, judgment for the issuing of shares to the amount of $3,658.14, no more and no less. I do not perceive the validity of this proposition. The plaintiff fails as to quantity, because the defendant establishes a modification of plaintiff’s claim.

It is also argued that the complaint is defective because it does not aver that no further errors had been found. This is not correct, because the not finding of errors was not a condition precedent to the acquirement of the cause of action for such number of shares as the plaintiff was entitled to have issued to him, and the lessening of the number of shares to which the defendant might be entitled, was founded upon an independent stipulation, upon which the defendant should take an affirmative stand.

It was also objected to the complaint, that it did not aver that the property turned over to the company by the plaintiff for the shares was worth $3,658.14. This was not essential to the validity of the agreement. The mere fact that property is not worth the amount of the shares is insignificant, if the estimate of the value is made in, good faith. The answer does not allege that there was any intent to evade the statute.

It was further argued, that the amount of $3,658.14, was in part made up of sums that were allowed as due to the plaintiff, whereas, in fact, they were not due by the defendant to the plaintiff. One of these sums was for salary which the plaintiff credited himself with when, as defendant now claims, no salary was due to him.

Whatever may be the rights of the parties as to these sums, and in particular that claimed for salary, the answer alleged no defence based upon the plaintiff taking the sum or the salary. The answer confines itself, in respect of the value of the property transferred by plaintiff, to an assertion of an erroneous estimate of the accepted accounts or to errors in the accounts. The case showed that there was no mistake or error, even if there were invalidity in the settlement between the parties as to the company allowing the plaintiff certain amounts, when it was not liable to the plaintiff, and the answer makes no allegation as to this.

It is also argued, that the accepted accounts ” were not necessary for the business of the defendant, and for that reason the directors had not power to issue stock for them. Such a defence was not made. If it had been pleaded, it could not have prevailed under the circumstances. The accounts were incidents of the business that the plaintiff transferred to the defendant, and the transaction of that kind of business was within the powers of the defendant.

The defendant’s counsel urges, that as the agreement is contained in a resolution which was passed at a meeting of directors, the plaintiff being present and voting for, the resolution,' it is void. The answer avers and the testimony shows, that he did vote. The answer does not attempt to avoid the contract for this reason and the contract could not be avoided without restoring to the plaintiff what he had transferred. There was no offer to restore, and indeed restoration was impossible from the manner in which the defendant had dealt with the property.

The defendant set up as a defence, that after the making of this contract in question the defendant passed a resolution that no certificate of stock should yet be issued to any stockholder. The plaintiff did not bind himself to omit to demand his shares of stock, and if before the resolution his right to shares was perfect, the defendant could not diminish or annul his right and absolve themselves from their obligation by resolving to do so.

I am of opinion that there was no error during the trial, and the judgment should be affirmed with costs.

Freedman, J., concurred.

Same Case.

Same Term.

Appeal by defendant from an order denying defendant’s motion to strike out from judgment a provision for an additional sum as costs, and for a stay of proceedings upon the judgment.

Same Counsel.

Bt the Court.—Sedgwick, Oh. J.

It is general practice to make or refuse to make an additional allowance by a provision in the conclusion of law in an equity case. The action involved the plaintiff’s right to shares, and to a certificate as evidence of his ownership of them. Their value was shown by the testimony in the case, when it appeared that the defendant agreed to transfer the shares in consideration of receiving property from plaintiff agreed by the parties to be of the nominal value of the shares to be transferred.

It was within the discretion of the court to refuse to stay the proceedings without security from defendant.

The judgment and order should be affirmed, with costs.

Freedman, J., concurred.

Ingraham, J., (dissenting.)

I am unable to agree with my associates in the conclusion to which they have arrived that this judgment should be affirmed. It was at least doubtful whether the “ further errors ” mentioned in the agreement of June 16,1888, related to the amounts that could be realized from the accounts or errors, in the method by which the amounts due had been determined. If plaintiff had transferred to defendant certain accounts which represented debts to him, secured by the personal property which was deposited with him on storage, and had represented that such accounts were good and collectible, and that the property upon which he had a lien for the several amounts due him was sufficient security for which the defendant had agreed to pay him $10,000, to be applied in payment of a subscription for that amount of the capital stock of the company, and that it subsequently appeared that' such representation was false as to the collectibility of a portion of the accounts, and the parties had deducted the amounts that up to that time had been ascertained to be uncollectible, and then fixed the amount of stock to which the plaintiff was entitled from the accounts before transferred, but providing “ that all further errors found in the accepted accounts from him shall be a charge against his stock.” It would be, I think, clear that the “ further errors” would be errors of like character to the ones that had been corrected by the agreement of June 16, 1888.

The defendant offered to prove the original agreement whereby plaintiff subscribed to the stock of the defendant, offered to show the terms of the subscription and the representations made by plaintiff as to the value of the business ; of the value of the plant turned over; as to the value of the accounts receivable, and that there was a shrinkage in the accounts.

All of this evidence was excluded, and the defendant excepted. Defendant also offered to show the condition of things that led up to the agreement of June 16, 1888, upon which the cause of action was based, which was excluded by the court, and to which the plaintiff excepted. I think all of this testimony was material and necessary to enable the court to determine the meaning of the words “further errors in the accepted accounts.”

Several other questions are presented which are not free from doubt, but I think it clear that the exclusion of the evidence before referred to, requires that there should be a new trial.


author: Freedman, J. Sedgwick, Ch. J. Ingraham, J.

text:
    CHARLES J. QUIMBY, Respondent, v. EDMUND H. CARHART, et al., Appellants.

      Jury—Questions of fact pertinent to the issue, upon which there is a conflict of evidence, should be submitted to the jury by the court, refusal of court is error.

    In the case at bar, the substantial controversy between the parties, and by the evidence competently given, hinged upon the disputed question of fact whether, by the settlement of March 5, 1884, the entire account of the plaintiff was closed, apd upon this question there was quite a conflict of evidence. The refusal of the court to submit the question clearly constituted error.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1890.
    Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order entered denying defendants’ motion for a new trial.

      Ira D. Warren, for appellants.

      M. Silliman, attorney, and William P. Fiero of counsel, for respondent.

       Although many questions arising in this case are discussed in the several separate opinions of the judges, this seems to be the only ground for reversal concurred in by all.—Meptrs.

   Freedman, J.

By his complaint the plaintiff seeks to recover the sum of $2,523.07, as damages alleged to have been sustained by the plaintiff because the defendants, in violation of an agreement made by them to pay plaintiff’s note for $2,500, which the plaintiff had given to them, failed to pay said nóte, and because, in consequence of such failure, the plaintiff was compelled to pay the amount of the note with interest, protest fees, and costs of collection, amounting altogether to the sum of $2,523.07. That being the cause of action sued upon, I fail to perceive how in any event the damages to be awarded can exceed the sum of $2,523,07. The trial, however, seems to have been conducted as if the action were for a general accounting, and the trial judge refused to submit to the jury any question except the question as to how much the verdict should be for the plaintiff, and as to that the instruction was that the verdict must be for either $3,542.28 or for $2,892.28.

Upon an examination of the whole case I fail to find that the defendants are in any wise chargeable with any such result. By the exceptions taken by them to the admission of evidence, to the denials of their motions to dismiss, to the charge as delivered and to the refusal of the court to charge their requests, the defendants preserved to themselves the right to have the issues as made by the pleadings determined, and nothing else.

According to plaintiff’s own showing there had been a long prior course of dealing between the parties to the effect that the defendants, at the request of the plaintiff, would sell goods to certain merchants in the south, but charge them to the plaintiff at a discount of 10 per cent, and that the plaintiff, in order to earn said discount, would have the goods charged against himself and settle for them from time to time.

The complaint specifically alleges: ‘‘ That on the 5th day of March, 1884, this plaintiff was indebted to said defendants on account for goods so purchased as aforesaid by him, in the sum of $1,000. That on the said 5th day of March, 1884, this plaintiff called at the store of said defendants in the city of New York and stated to them that he, said plaintiff, desired to settle and close said account. It was then bargained and agreed by and between the parties to this action, that for the purpose of closing and settling said account and to accommodate this plaintiff with a loan of $1,500, that said plaintiff should make his note for the sum of $2,500 payable to the order of the. defendants, at the Ninth National Bank, in the city of New York, in four months after date, and the balance of the proceeds of said note, over and above the amount due on said account, viz., the sum of $1,500, should be held by the defendants subject to the draft of this plaintiff. It was then and there further agreed by and between the parties to this action that the plaintiff should be at liberty tó deposit money with said defendants from time to time before the maturity of said note, which deposits should be appropriated to and applied by the defendants to the payment of said note, and the defendants should take up said note at maturity.

“ That said plaintiff did, pursuant to said agreement, on the 5th day of March, 1884, make and deliver his said promissory note to the defendants for the sum of $2,500, payable to the order of Car-hart, Whitford & Co. in four months after the date thereof, at the Ninth National Bank, New York city, and did then close said account.”

The defendants, on the other hand, denied that they made an unconditional promise to take up the note, and they insisted that, whatever promise was made, was of no legal binding force; they denied that plaintiff’s account was closed on March 5th, and showed that the settlement which took place on that day, was a settlement of plaintiff’s account up to February 1st, pursuant to the custom between the parties, and that it had been the custom between them to close the fall account on the 1st of February of the next year, and the spring account on the 1st of August of the same year; they also showed that there were items in the month of February that were not included in the settlement; and after all that they gave evidence to show that by reason of subsequent transactions they were justified in not paying the note and in applying the amount in their hands to such subsequent transactions. They also set up, in their answer, a counterclaim for a balance due to them.

Aside from the other questions indicated, the substantial controversy between the parties, under the issues as presented by the pleadings and the evidence competently given, hinged- upon the disputed question of fact whether, by the settlement of March 5th, the entire account of the plaintiff was closed, and upon this question there was quite a conflict of evidence. The request of the defendants that the question whether or not Mr. Quimby purchased certain goods after the 5th of March from the defendants which were sent to Matthiesen & Doolittle, which was refused and to which refusal due exception was taken, directly involved thé proposition that the said conflict should be submitted to the jury for determination, and the refusal of the court to submit the question clearly constituted error.

As this error alone necessitates a new trial, it is not deemed necessary to say any more than what has already been said.

The judgment and order should be reversed and a new trial ordered with costs to abide the event.

Sedgwick, Ch. J.

The complaint does not, to me, appear to claim damages only for the non-payment of plaintiff’s note by the defendants, after they, the defendants, had promised to pay that note. If that were all, the plaintiff, under the case made, would not be entitled to recover what he had expended in paying his own obligation, but only such damage as the plaintiff would sustain, if any, from the defendants not paying. ■

The complaint seems to me to be in the nature of an action to recover an amount deposited 'with defendants by plaintiff. It avers that defendants did not and plaintiff did pay the note, but it does not confine the claim of damages to the consequences of that. It proceeds, whereby and by reason of the premises, the plaintiff was damaged in the sum of $2,523.07. The premises include the averments as . to the deposit.

Although the verdict was for a greater sum than the complaint asked judgment for, I do not think this calls for a reversal. The evidence was the same as it would have been if the' complaint had demanded judgment in a sufficient amount. There was no objection taken on the ground of the form of the complaint. The objection taken to the charge of the court upon the subject of the amount the plaintiff should recover, referred apparently to the merits of the controversy as exposed by the testimony.

I do not find that there was any error in admitting the record'of the action by the assignee of the defendants against Matthiesen & Doolittle. The judgment obtained in it had been paid as testified by one of the defendants. The claim was identical with the counter-claim in this action. The reply to the counter-claim was incontrovertibly sustained. The plaintiff, under the facts of this case, was not liable after the payment of the judgment if defendants’ view of plaintiff’s liability is assumed to be correct.

On the other hand the judgment did not determine, as between the parties to this action, that defendants were liable for the amount of the so-called deposit. The defendants’ assignee in the action in question had applied the amount to payment of the claim made against Matthiesen & Doolittle. The present plaintiff was not party nor privy to the action, and, as to the claim for the deposit could use the record in connection with other facts only to show something in the nature of an admission that plaintiff was not purchaser.

I agree with Judge Fbeedmah that, on the testimony, the verdict of the jury should have been taken, as requested by defendants, on the issue in the case of plaintiff’s liability for purchases made after March 5, 1884, by Matthiesen & Doolittle, of the defendants. There was evidence which would have sustained a finding of fact by the jury, that plaintiff had agreed to pay for such purchases. The answer, as a defence had averred, that what I term the deposit, “had been applied to the plaintiff’s account for goods purchased from the defendants by the plaintiff, under the agreement hereinafter set forth." The agreement was afterwards set forth in the counter-claim. The case as made upon the trial, and as argued on the appeal, did not turn upon any difference there might be between the purchases being made by the plaintiff or being made by Matthiesen & Doolittle, the plaintiffs guaranteeing their purchases.

I will advert to one piece of testimony on the subject of the liability of plaintiff for purchases made after March 5th. One of the plaintiffs was a witness in his own behalf. He testified that on March 5th he had a settlement with defendants. The latter presented a bill, ¡which contained their statement of what was due by plaintiff on account of the purchases of goods by Matthiesen & Doolittle, made before March 5th, and the witness paid the balance. He said that the bill he then presented in court was that bill. In the case, that bill appears to have been “ to amount of statement received $3,989.78. Matthiesen & Doolittle. Dated May 3, 4 mos. 10 per cent discount on amount, etc.” The bill was dated August 1, 1884, and on its face applied the amount deposited to payment of defendants’ claim. The statement referred to was afterwards offered in evidence, and appears to have detailed purchases by Matthiesen & Doolittle from February 11th to June 16th, amounting in all to $3,989.78. All this was so contrary to plaintiff’s position, that it may . be surmised that the printed case is incorrect. That surmise cannot be entertained against the face of the record.

The judgment and order appealed from should be reversed with costs to abide event, a new trial being-ordered.

Ingraham, J.

I think that a finding of" the jury that the goods delivered to Matthiesen & Doolittle were, in reality, purchased by the plaintiff, and Matthiesen & Doolittle under the agreement that had before existed, would have been sustained, and in that event the defendants were justified in applying the amount deposited by plaintiff to the payment of the balance due on such sale. That question should have been submitted to the jury. The defendants requested the court to submit that question to the jury, which request was refused. For that reason I think the judgment must be reversed.

I agree with the chief judge that the judgment in South Carolina was competent to prove that the defendants’ counter-claim had been paid, but it did not adjudge that plaintiff was not liable for the goods. In fact, by crediting Matthiesen & Doolittle with the money deposited by plaintiff, they allege in substance that plaintiff’s money, for which he brings this action, was applied on that indebtedness.

I also concur with the chief judge in his construction of the pleadings.