Norman v. Carter — 16 N.Y. St. Rep. 250

Majority

p. 250

Helen Norman, Resp’t, v. Henry Carter and another, App’lts.

(Supreme Court, General Term, First Department,

Filed May 18,1888.)

Headnote

Practice—Motion to dismiss complaint—Action on a joint contract

When an action is brought upon a joint contract against several defend* ants, and it is claimed that the evidence fails to establish the joint liability of one defendant, a motion to dismiss the complaint will be properly denied, unless the same is made as to that particular defendant.

Appeal from judgment entered upon verdict of a jury in favor of plaintiff and from order denying motion for a new trial.

Macfarland, Boardman & Platt, for app’lts; S. B. Hamburger, for resp’t.

The plaintiff in this action sued to recover the amount of $600 as salary for the year commencing on the 1st of May, 1883, and ending on the 1st of May, 1884, as a choir singer of Plymouth Church. The defendants answered separately, each putting in substantially a general denial.

p. 251

Upon the trial the plaintiff testified to certain conversations had with the defendant Carter, and also to certain conversations had with the defendant Garrothers, claiming that during such conversations the contract had been made alleged in the complaint. The defendants denied these portions of the conversation which tended to establish the making of a contract, and upon the completion of the evidence in the case, the defendants moved to dismiss the complaint upon the ground that it alleged a joint contract of employment between the parties, and no such contract had been proved. The defendant’s counsel also moved to dismiss the complaint against the defendant Garrothers, upon the ground that the only evidence against him was . a guaranty if Mr. Carter employed the plaintiff. This motion was denied and an exception taken.

The learned judge then submitted the question to the jury as to whether a contract had been entered into between the plaintiff and either Carter or Garrothers, and also the question as to whether, if such contract was established, the defendant, Carter, was justified in discharging her from her employment. The jury found in favor of the plaintiff, upon all these questions against both defendants.

There seems to be no question but that the plaintiff’s evidence was sufficient, if they believed it, to justify the jury in finding a contract made between the plaintiff and Garrothers. She swore explicitly that he engaged her by a parol contract, that a written contract was spoken of, but it was not thought necessary.

The evidence against the defendant, Carter, however, is not by auy means so distinct or convincing. It was entirely consistent with the idea that the question of a contract was to be left in abeyance, and that the engagement was to be made by Mr. Garrothers, and not by Mr. Carter. No exception however, was taken during the progress of the trial to raise this question, as it seems to have been conceded, that if any contract whatever was established, Mr. Carter was responsible upon it. The only motion to dismiss was based upon the ground, First. That it was a joint contract; and Secondly. That as to Mr. Garrothers, he was shown simply to be a surety. The objection that no joint contract had been proven, aid not justify the dismissal of the complaint, because if a contract with either was shown, such motion was properly denied, as a recovery might be had against either one of the defendants who might be found to have made such a contract. If a motion to dismiss had been made as to Carter, then this question would have arisen.

The evidence in the case shows, if the plaintiff’s statement is to be believed, and it would appear that the jury believed it, that there was an engagement between Garrothers and the plaintiff, and such being the case, the motion to dismiss as to him was properly denied. There was nothing

p. 252

to show that he was to be a mere surety. The whole tendency of the evidence showed, if any contract was made at all, that he was to be the contracting party. The jury having found the question of fact in favor of the plaintiff, upon evidence which is sufficient to sustain their verdict upon this appeal, we cannot disturb the same."

The judgment and order appealed from should be affirmed with costs.

Bartlett and Macomber, JJ., concur.