Ryle v. Harrington — 4 Abb. Pr. 421

Majority

p. 421

RYLE a. HARRINGTON.

Supreme Court, First District;

Special Term, March, 1857.

Headnote

Consideration of Note.—Construction of Pleading.—Motion at Special Term for Hew Trial.

A verified pleading must be construed so as to make all its parts, if possible, harmonize with each other.

The answer of the maker to a complaint on a promissory note set up as a first defence that no consideration was ever given for it; and as a second defence set forth the circumstances under which it was executed and came into the plaintiff’s hands,—Meld that the first branch of the answer must be interpreted by the second, and that so interpreted it was no defence in law; and the second branch, if it were a sufficient defence, not having been sustained by the evidence at the trial, that the whole defence failed, and there was no alternative but a verdict for the plaintiff.

There is no doubt of the impropriety of one single judge sitting in review of the rulings of another single judge of the same court. The rule of the Superior Court that no alleged error of law on the trial before the jury would be considered at special term, that is, by a single judge, “ unless by the express direction of the justice before whom the cause was tried” (4 Band/., 701), approved in the Supreme Court.

Quere, whether, under section 266 of the Code, the motion for a new trial, or application for judgment, there prescribed to be made “ at the circuit or special term,” can be made before any judge other than him before whom the case was tried 8

Motion for a new trial.

The complaint was on a promissory note made by the defendant Harrington to the defendant Searls, and by him endorsed to the plaintiff. In his answer, which was verified, Harrington set up two separate defences:—1. A denial of the making of the note for a valuable consideration, and a denial for want of knowledge, &c., of the endorsement; 2. That .the note was made by him without any consideration ever having been paid for it by Searls or any other party, and for the specific purpose of being deposited with the plaintiff temporarily, and until the defendant Searls should procure and tender certain other notes to the plaintiff in payment of an indebtedness, and that upon that the note in suit should be given up; that such notes as agreed upon were tendered by Searls, but refused by the plaintiff, who declined to

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give up the note in suit; and that Searls still held the notes tendered, subject to the order of the plaintiff.

The cause was tried before Mr. Justice Davies and a jury at the October circuit. After proof of the note and endorsement, the plaintiff rested. Searls was called as a witness for the defendant Harrington, and testified that he received the note from Harrington; that no consideration ever passed to Harrington for it, and that the witness passed it to the plaintiff for the plaintiff’s accommodation. The judge thereupon directed a verdict for the plaintiff.

The defendant moved at special term, before Mr. Justice Boosevelt, for a new trial.

S. Sanxay, for the motion.

Aaron & Dayton Ogden, opposed.

—The defendant Harrington is sued as a maker of a promissory note. In his answer he sets up two defences:— First, he denies that he made the note for a valuable consideration ; second, he says (and in this he shows what he means by consideration) that the note was made for the purpose of being deposited with the plaintiff temporarily, until Searls (the payee and endorser), who had become indebted to the plaintiff for goods sold, should procure and deliver three other notes, which plaintiff had agreed to accept in its stead, as payment for the goods; which three notes, he says, Searls accordingly did procure and tender to the plaintiff, who refused to accept them and deliver up defendant’s note; and that Searls still holds those three notes, subject to plaintiff’s order; and he (the defendant) therefore insists that the plaintiff has no right to the note sued on, and has given no consideration for the same. As this answer is under oath, the law requires that, like any other sworn statement, it should be so construed as to make all its parts, if possible, harmonize with, and not contradict, each other. When, therefore, in the first branch of the answer, the defendant says he made the note without consideration, he must be understood as meaning that, in his view of the law, the matter as subsequently explained by him was no consideration. The judge at the trial, however, took, and I think correctly, a different view of the law, and as no evidence was offered to support the aver

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ment that the three substituted notes were ever procured or tendered, the whole defence failed, and there was no alternative but a verdict for the plaintiff.

The judgment then rests on two propositions, namely: that the first branch of the answer, interpreted by the whole, is no defence in law; and that the second branch, if a sufficient defence in law, is not sustained by the proofs offered at the trial.

Motion for new trial denied with costs.

I have examined this case as if it were regularly before me. It is proper, however, to add that the practice is not perfectly clear. As to the unfitness of a single judge sitting in review upon the rulings of another single judge of the same court, there can be no doubt. The Superior Court in 1851, to prevent such an occurrence, provided by an express rule that no alleged errors of law, in the trial before the jury, would be considered at special term—that is, by a single judge—“ unless by the express direction of the justice before whom the cause was tried and in the very next year, when the Legislature had the Code under consideration, an amendment was introduced seemingly to give greater effect to the suggestion of the Superior Court. Prior to that time motions for new trials on exceptions were required in the first instance to be heard and decided at a special term, “ unless the judge trying the cause should send the case directly to the general term. But by the amendment of 1852, it is declared that such motions” must in the first instance be heard and decided at the circuit or special term, unless, &c. (Code, § 265).

Why was this change from the indefinite to the definite article, unless to prevent an appeal from “ one judge to another in the same court ?”—a proceeding which, as the Superior Court had very justly observed (in 4 Sandf., 701 ), should never be permitted where it can be avoided.