Heller v. Peterson — 18 N.Y. St. Rep. 928

Majority

p. 928

Arnold Heller, App’lt, v. Henry Peterson, Resp’t.

(City Court of New York, General Term,

Filed October 26, 1888.)

Headnote

StIPULATIOSS—COKSTUCTIOK OF.

This action was brought upon a promissory note made by the defendant and alleged to have been endorsed by the payee to the plaintiff for value. The answer admits the making of the note, but denies that there was any consideration therefor, and alleges that the note was transferred to the plaintiff after maturity Immediately prior to the trial of this action another action between the plaintiff and this defendant impleaded with another also on a promissory note was tried, in which it was stipulated, among other things, that ail the allegations in the complaint except the question of consideration as averred in the answer were admitted by the defendant. Upon the trial of the present action it was stipulated m open court by the attorneys for the respective parties that the testimony and stipulation in the other case should apply to this as far as .practicable. Held, that in view of these stipulations the only issue remaining to he tried was as to the consideration paid for the note, and that having been proven, it was error to dismiss the complaint.

Appeal from a judgment entered upon a trial before the -court without a jury.

Morrison & Kennedy, for app’lt; Rufus F. Andrews, for resp’t.

This is an action on a promissory note for the sum of $400 made by the defendant to the order of one A. Alster, alleged to have been endorsed over by him to the plaintiff for value. The answer admits the making of the note, but denies that there was any consideration therefor, and alleges that the note was transferred to the plaintiff long after it became due and payable.

Immediately prior to the trial of this action, another action between this plaintiff and this defendant impleaded with Kate Edling also on a promissory note, was tried before the same justice without a jury. In that action, the following stipulation was entered into upon the trial:

“It is agreed by the counsel for the respective parties that the case shall be tried without a jury. Defendant’s counsel admits all the allegations of the complaint except the question of consideration, as averred in the answer in this case.”"

Upon the trial of this action the following stipulation was entered into:

'‘It is stipulated in open court, by the attorneys for the respective parties, that the testimony and stipulations in the case between the same plaintiff and one of the defend ants, tried just previous to this case, shall apply to this case so far as the same is applicable.”

p. 929

It appeared, upon the trial, that the note in suit was not endorsed by the payee to the plaintiff. The latter, however, testified that he was the owner thereof, having bought it a couple of months previously, sending a check •therefor The defendant admitted the making of the note.

At the close of the trial, defendant’s counsel moved to dismiss the complaint on the ground that the note in suit, not being endorsed by A. Alster, to whom it is drawn, is not negotiable paper, and the mere holding thereof by the plaintiff without any such indorsement, is not sufficient proof of title. Also on the ground that there is no proof of any transfer whatever of the said note. The motion was granted, and the complaint dismissed, whereupon tire plaintiff duly excepted.

It is difficult to understand how, in the face of the admissions contained in the answer, and the solemn stipulation between the attorneys upon the trial, a motion to dismiss, upon ,the grounds stated, could be made, and, if made, be entertained by the court. The only issue remaining to be tried was as to the consideration paid for the note. This seems to have been satisfactorily proven, otherwise the defendant’s counsel would have moved to dismiss for failure to prove consideration.

The stipulation is plain and unambiguous. If defendant intended to stipulate something else, he should have worded it according to his intention. It is elementary that the stipulation must be construed strictly against the party making it, and the defendant cannot complain if he is taken at his word.

It follows that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Ordered accordingly.

MoGown, J., concurs.