Banks v. New York Club — 22 N.Y.S. 727

Majority

p. 727

(68 Hun, 92.)

BANKS v. NEW YORK CLUB.

(Supreme Court, General Term, First Department.

March 17, 1893.)

Headnote

1. Contract by Corporation—What Constitutes.

An agreement, made at a meeting of persons interested in a corporation, to issue its bonds to secure a loan of money, is not binding on the corporation, in the absence of evidence that they had authority to act for the corporation in its corporate capacity, or that their act was ratified, by the corporation.

3. Same—Debt on Sealed Instrument.

Even if there was a valid agreement to issue bonds for such purpose, the debt thereby created would not be a debt on a sealed instrument.

3. Review on Appeal—Harmless Error.

The final ruling of a court is not affected by an error in the admission of testimony only intended for the jury, where the case is not submitted to them.

Exceptions from circuit court, New York county.

Action by Charles Banks against the New York Club to recover for moneys loaned to defendant. A motion to dismiss the complaint was sustained, and plaintiff’s motion for a new trial on exceptions

p. 728

was directed to be heard in the first instance at the general term.

Exceptions overruled.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

J. 0. Coleman, (J. Adriance Bush, of counsel,) for plaintiff.

Earned & Warren, (Ira D. Warren, of counsel,) for defendant.

The court is unable to see any reason why the exceptions in this case were ordered to be heard in the first instance at general term, there being no difficult or doubtful questions involved in the complaint. This action is brought for loans of money made between the 1st of February, 1875, and the 14th of December, 1877, and was commenced on the 12th of December, 1890. The plea, among others, of the statute of limitations, was interposed. The evidence of the plaintiff tended to show the loan of the money. There was no agreement as to when it was to be paid, although there was evidence upon the part of the plaintiff that it was understood and agreed, at a meeting of some persons interested in the defendant, that bonds should be issued for the amount of the loan, and that the $4,500 involved in this action was loaned on that understanding. But there is no evidence that any of these parties who entered into that agreement was authorized to bind the defendant, in its corporate capacity, or that it was ever ratified by the defendant, even if such an agreement could possibly have prevented the statute from running. It was claimed upon the part of the plaintiff that it was agreed that the club was not to pay until it was able to do so, until within six years from the date of the trial; biit an examination of that evidence shows that at this meeting of these persons interested in the club (whether officers of the club or not, the record does not shows; it certainly was not a meeting of the managers óf the club) it was stated that the claim should not be asked for until the club was in such a condition. This, clearly, was no agreement at all. It seems to have been some loose talk among persons who were interested in the club.

The idea which is advanced, that, if a bond was agreed to be delivered, (which is not established,) therefore, the bond being a sealed instrument, the debt arose upon a sealed instrument, has no foundation whatever.

It is claimed that error was committed by the court in the exclusion and admission of evidence which may have either prejudiced or influenced the jury. But it is difficult to see how any testimony which was only intended for the jury can affect the final rilling of the court, when the case was never submitted to the jury, and therefore there was no jury to be influenced. The exceptions should be overruled, and judgment ordered for the defendant, with costs. All concur.