Bantle v. Krebs — 23 N.Y. St. Rep. 381

Majority

p. 381

Conrad Bantle v. Barbara Krebs.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Practice—When parties estopped prom claiming that question op PACT SHOULD HAVE BEEN SUBMITTED TO JURY.

Where both parties insist at the trial that the action should he disposed' of by the court, they, in that way, deprive themselves of the right after-wards to claim that the case should, on any question of fact, have been submitted to the jury.

Both parties insisted at the trial that this, action should be disposed of by the court. They, in that way, deprived themselves of the right, afterwards to claim

p. 382

that the case should on any question of fact have been sub-' mitted to the jury. And for its disposition the court could very well conclude, from the evidence of Martin, the principal debtor, that he offered to pay the note to Mr. Wekle, the attorney having charge of the business for the plaintiff on the fifteenth. Also that he called at his office on the sixteenth of October, the last day of grace, to pay the note. And in addition to that fact, that the note had in fact been paid,the court could assume from the evidence,that the money had been offered and finally accepted on the note, and that the plaintiff should not be permitted to maintain the action, which was a sharp device to avoid the effect of the settlement. The justice of the case is with the defendant, and an order to show cause why there shall not be a reargument should be refused.