Clancey v. Losey — 48 N.Y. St. Rep. 191

Majority

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Mary J. Clancey et al., Resp’ts, v. George R. Losey et al. , App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

1. Evidence—Market value of loan of credit.

The admission of testimony of market value, or reasonable value, of a loan of credit is error, but, when its admission is not only not to the prejudice of appellants, but to their advantage, it is not a ground for reversal of a judgment.

2. Counterclaim—Action on former—No mention in stipulation of DISCONTINUANCE.

Where in an action on a claim set up as a counterclaim in a former action which had been discontinued by stipulation, it appeared that the parties were not entirely the same, and no mention was made of the claim in such stipulation and no agreement as to the same was shown. Held, that the action was properly brought.

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Appeal from a judgment of the county court of Monroe county, entered on the verdict of a jury; and from an order denying the defendants’ motion for a new trial on the minutes of the court.

H. B. Halloch, for app’lts; J. A. Garloch, for resp’ts.

The action was to recover the sum of $600,. alleged to have been wrongfully retained and withheld by the defendants out of the avails of a loan negotiated by them for the plaintiffs. The answer averred a special contract of the plaintiffs to pay the defendants the sum of $600 for their services in negotiating the loan of $4,300 for three months, and for endorsing the: plaintiffs’ note therefor. The two defendants did endorse the note, and procured the endorsement of a third person, and the-discount of the note at bank, and the defendants kept back the $600. As security to the endorsers, the plaintiffs executed to the-three a mortgage on real estate in Rochester, of large value, but subject to prior incumbrances. The note not being paid at the end of the three months, the mortgagees- promptly• proceeded to-bring an action of foreclosure, and the mortgagors, the plaintiffs herein, set up, among other matters, by way of defense, a- counterclaim against the two defendants herein for the $600 wrongfully retained by them. That action was discontinued, by stipulation of the parties, under an arrangement by which a brother of the plaintiffs here took title to the property, and negotiated a new loan, out of the avails of which he paid off the mortgage in suit, and all other liens on the property.

On the trial evidence was received against the defendants’ objection for the purpose of showing a market value or usual price of such services as those of the defendants, including their endorsement, and what such services and endorsement were reasonably worth. The jury rendered a verdict for the plaintiffs for $271.20.

The foregoing statement presents the two questions which arise-on this appeal; neither of which, we think, affords ground for a reversal of the judgment appealed from.

The admission of testimony of market value or reasonable value of a loan of credit was no doubt error, Perrine v. Hotchkiss, 58 Barb., 77 , but it was not only not to the prejudice of the defendants, but to their advantage. The jury refused to belive the testimony of the defendants as to the existence of the special contract for $600, and, therefore, under the doctrine of the case cited, they could have recovered nothing beyond the statutory brokerage, at the rate of one-half of one per cent per annum on the amount of the loan. It was only on the theory of a quantum, meruit that the jury could have allowed to them the substantial compensation of about-$250 for their services and endorsement, and thus the admission of the evidence in question was clearly not to their prejudice.

The other objection to the judgment which was raised by a. motion for the direction of a verdict, viz.: that the cause of action of the plaintiffs was settled and discharged by their consent to a

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discontinuation of the foreclosure action against them, is equally unavailing to the defendants. The two actions were not between, the same parties. Thd foreclosure action was brought by the three mortgagees, and the counterclaim attempted be set up by the plaintiffs here, as defendants in that action, existed only against two of those plaintiffs and was not properly pleaded and could not have been properly allowed as a counterclaim therein. There was in the stipulation for a ■ discontinuance of the action, no reference to the attempted counterclaim, nor was it, so far as-the evidence shows, mentioned or considered in the negotiations-which led-to the discontinuance.

We find nothing in the case which indicates that there was any agreement between the parties that the plaintiffs’ claim in this action should be discharged in the settlement of the action of foreclosure ; and certainly there was nothing in the settlement itself which necessitated that result.

There seems to have been no error committed on the trial of this case of which the defendants have the right to complain, and the judgment and order denying motion for a new trial must be-affirmed.

Judgment and order of the county court of Monroe county appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.