Nesbit v. Mathews — 41 N.Y. St. Rep. 89

Majority

p. 89

John A. Nesbit, Resp’t, v. Elizabeth A. Mathews, App’lt.

(City Court of New York, General Term,

Filed November 16, 1891.)

Headnote

1. Money had and received—Jurisdiction of city court.

Defendant held title to certain real estate for the benefit of plaintiff and his brother, which property was sold. Reid, that an action to recover plaintiff’s share of the proceeds of sale was not an action to create a trust, but one for money had and received, and that the city court had jurisdiction thereof.

2. Triad—Requests for direction of verdict.

Where both parties request a direction, and defendant fails to request a submission of the questions of fact to the jury, he thereby waives all objections to the mode of trial, and must stand on the exceptions taken.

Appeal from judgment entered on verdict directed in favor of plaintiff.

Martin J. Keogh, for app’lt; Guggenheimer & Untermeyer, for resp’t.

This action was brought to recover the sum of $191.38, for money had and received by defendant for the benefit of plaintiff.

It appears that the defendant held title to certain real estate in the city of Hew York for the benefit of the plaintiff and his brother.

The property was sold, and after satisfying liens there remained in the hands of the defendant the sum of $382.77, one-half of which belonged to plaintiff, and for which sum this action was brought.

On the trial of the action, defendant moved to dismiss the complaint, claiming that the action was one to create a trust, and that this court therefore had no jurisdiction; this motion was denied, and exception taken.

The trial justice properly denied the motion. The evidence clearly shows that the defendant received the moneys for the benefit of the plaintiff, and this action was properly brought

At the close of the case, both parties moved for a direction, which resulted in the court directing a verdict for the plaintiff, to which no exception was taken by defendant.

It has uniformly been held that where both parties request the court to make a direction, and defendant fails to request the submission of the questions of fact to the jury, he thereby waives all objections to the mode of trial and must stand upon the exceptions taken.

A careful inspection of the printed case fails to disclose any exceptions showing error on the part of the trial justice.

Judgment must be affirmed, with costs.

Van Wyck, J., concurs.