Torrey v. Standish — 40 N.Y. St. Rep. 713

Majority

p. 713

Samuel H. Torrey, Jr., Resp't, v. Henry Standish et al. , Ex’rs, App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

Assignment—Admissions.

Plaintiff brought this action to recover upon a claim for goods sold and services rendered which had been assigned to him. On the trial plaintiff admitted some of the items of the counterclaim set up, and defendant stated that no issue would be made as to plaintiff’s claim for wood. Held, that this statement was an admission of the assignment as to the entire claim for goods sold.

Appeal from a judgment entered in Onondaga county, July 14. 1886, on the report of a referee.

Charles H. Paddock, for app’lts ; Edwin Hicks, for resp’t.

This action was brought to recover upon an open account for the personal property sold and delivered by Samuel H. Torrey and George T. Standish, respectively, and for work, labor and services and moneys laid out and expended by

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them, which accounts had been assigned to the plaintiff. Besides the general denial, the answer contained allegations of settlement made by the original contractors, together with payment, and counterclaims. Upon the issue presented by the reply filed to the counterclaims, the trial was had before a referee which resulted . in a judgment for the plaintiff. The referee has found upon competent evidence, that, from the spring of 1865 to June 30th, 1873, Samuel H. Torrey, the plaintiff’s assignor, sold and delivered to Henry Standish and Salem Standish, (the latter now deceased, being represented by his executrix), who were then partners in business, personal property of the agreed price; and performed legal services at their request and for which they became liable to pay several sums of money, amounting in all to $1,486. He has also found as applicable in part to the payment of such claim, many items of account, fully set out in his report, of Standish Bros., amounting to $1,026.55, leaving abalance in favor of Samuel Torrey, upon that cause of action, in the sum of $4,59.45.

The referee further finds that Greorge T. Standish had a claim against the defendants amounting to the sum of $1,392.15, but that the same had been reduced by payments and counter-charges on the books of the parties in the sum of $962.48, leaving a balance due to Greorge T. Standish, which was assigned to the plaintiff, of $429.67. Upon these two balances of accounts he gives judgment for the plaintiff in the sum of $889.12.

Every intendment must be made in behalf of the correctness of the judgment entered upon this report. The case fails to show that all the evidence is returned to us; and there are no -requests made to the learned referee to find upon any questions of fact differently from the conclusions, as has already been stated, to which he arrived.

An elaborate argument, however, has been addressed to us by the learned counsel for the appellant, to the effect that the claim of Samuel H Torrey against the defendants had not been assigned to the plaintiff, and that consequently the plaintiff could not recover thereon. By reference to the case, however, it will be found that the ground work of suck contention is wholly cut away by the admissions made by the defendant upon the trial. At the hearing on September 23, 1881, the following proceedings, were had: “ Plaintiff Torrey admits the item of $100 charged 8th of August, 1865, in defendants’ bill of items.”

“ Defendants’ counsel states that no issue will be made as to the amount of plaintiff’s claim for wood.”'

“ Plaintiff Torrey admits that about September, 1865, defendants paid to Gr. T. Standish for him $100; also, that they paid Captain Herendeen for him, charged November 14th, 1865, $35, and order on Herendeen December, 1865, for $46.50.”

It is obvious that the statement by counsel that no issue would be made as to the amount of plaintiff’s claim for wood carried the whole of plaintiff’s claim based upon the assignment of the account against the defendants, except the item of twenty dollars, the latter being for legal services. But even this item cannot, be deducted, inasmuch, as has already been-stated, the whole of

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the evidence is .not before us¡ and because there was no request made to the referee to find otherwise than he has upon that item.

In respect to the claim of the plaintiff based upon the assignment of the account of George T: Standish against the defendants, it appears that the conclusion arrived at by the referee was amply sustained by the testimony of George T. Standish, which is given in detail. The principal items of this claim do not appear to be substantially disputed, though in minor details there, is a conflict of evidence, but a preponderance of the evidence is in favor of the plaintiff’s contentions in respect to such item.

We have examined the several exceptions taken at the trial, to which our attention has been called by counsel for the appellants, but do not find in them any error which would impair the correctness of the conclusions reached by the referee.

It follows, therefore, that the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.