James v. Work — 51 N.Y. St. Rep. 323

Majority

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Edward C. James, Resp’t, v. James Henry Work, App’lt.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

1. Appeal — Settlement of case.

Appeals seeking to review the action of the trial judge in settling a case are not regarded with favor, and his decision is conclusive upon the appellate tribunal, except in cases where it is apparent that there has been upon the resettlement a denial of a substantial right.

2. Same.

The rule (41) which provides that the appellant shall furnish a statement showing the time of the commencement of the action, is satisfied by the words “ on or about,” and a motion to resettle the case by the insertion of these words should he allowed, where the appellant contends that if the

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date were stated positively, it might he construed into a waiver of the point raised upon the trial.

3. Same.

A motion to resettle a case by striking out the words “ in equity suit,” which were inserted in the summons as an amendment to defendant’s proposed case, and were not used on the trial, should he allowed, as the issue was whether plaintiff first commenced an action in equity for an accounting and was thereby precluded from bringing an action at law for fraud, and the trial judge should not have determined it upon settlement of the case.

Appeal from an order denying in part a motion made by defendant for a resettlement of the proposed case and amendments on defendant’s appeal from the judgment herein.

The action was based on alleged fraudulent representations made between February, 1884, and May, 1884, by defendant, as to the solvency of the firm of Grant & Ward and the existence of certain contracts, by which plaintiff was induced to intrust to defendant large sums of money which he claims were lost by such deceit. Another action was brought by plaintiff against the same defendant, in which defendant was asked to account for profits alleged to have been made by him in the various transactions. On February 11, 1890, plaintiff made a demand on defendant for certain extra profits which he had not accounted for, and served the following summons on him: “Edward G. James, plaintiff, against James H. Work, defendant. Summons. You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service, and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.”

On February 12, 1890, plaintiff served another summons on defendant, which, with the proof of service (Exhibit L4), was as follows: “Edward C. James, plaintiff, against James H. Work, defendant. Summons. To the above-named defendant. You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service, and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.” “ Robert McC. Robinson, being duly sworn, says that he is of the age of 21 years and upwards; that on the 12th day of February, 1890, between the hours of 2 p. M. and 3 p. M., at No. 2 Wall street, New York city, he served James FL Work, the defendant herein, with the annexed summons, by delivering to the same and b)r leaving a copy of the same with said defendant personally ; and he further says that he knew the person served to be the person mentioned and described in said summons, and to be the defendant in this action.” On March 22, 1890, two complaints, one in an action for fraud, and one in an action for an accounting, were served together. It was claimed by defendant on the trial that by making the demand on February 11th, and serving a summons immediately afterwards, plaintiff

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elected to ratify the agency of defendant, and to sue him as such agent for an accounting, and by serving the summons did then commence a suit for such accounting, and was thereby precluded from afterwards bringing an action at law for fraud.

Plaintiff’s amendments Nos. 1 and 151 to defendant’s proposed case on appeal, which were allowed, were as follows: Amendment No. 1: “On page 1 strike out lines 13 to 17, inclusive, and instead thereof insert as follows : ‘ This action was commenced on the 11th day of February, 1890, by service of summons. The complaint was served on the 22d day of March, 1890. The answer of the defendant was served on the 11th day of April, 1890. The.’ ” Amendment No. 151: “ On page 190, in line 15, after the word ‘summons’ insert ‘in equity case,’ and between lines 16 and 17 insert the summons and proof of service, Exhibit L4, in full.”

Adolph L. Pincoffs (Noah Davis, of counsel), for app’lt; Edward C. James, resp’t in person.

Appeals seeking to review the action of the trial judge in settling a case are not regarded with favor, and the decision of the trial judge is conclusive upon the appellate tribunal, except in cases where it is apparent that there has been upon the resettlement a denial of a substantial right. This view disposes of all the questions raised on this appeal, excepting two, relating to the 1st and 151st amendments, which were allowed, and which, on motion, the trial judge refused to strike out.

The first amendment refers to the preliminary statement which, by the rules, is required to be inserted in the case, as to when the action was begun. The rule would be satisfied by the insertion of the words “ on or about ’’ February 11th, instead of fixing the date as positively of the 11th of February; and in view of the stress placed upon the position of the appellant that, if the date were stated positively, it might be construed into a waiver of the point raised upon the trial, we think it should be allowed. The reasons for this conclusion are more apparent when we come to. consider the 151st amendment, by which it was sought to have inserted “after the word ‘summons’ the words ‘in equity suit,’ ” which words sought to be inserted were not used upon the trial. It is not disputed but that the defendant then made the point that the equity suit was first commenced, and that thereby the plaintiff was precluded from afterwards bringing an action at law for fraud, and that the plaintiff’s evidence was directed to showing that this contention was unfounded, and that the summons marked “L4” was the summons in the equity suit. This, however, was the point at issue between the parties; and we think that the trial judge should not have determined this in plaintiff’s favor, upon the settlement of the case, which is the result of now characterizing the summons offered in evidence by the words “ in the equity suit.” The summons with the proof of service, or the exhibit just as it was presented, and with the offer made at the time it was presented, are entirely proper, and will appear in the case as settled. This, supplemented with the testimony on the part of the plaintiff, places the plaintiff’s rights with respect to this ques

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tion in the same position as they were upon the trial. We think, therefore, that the order denying the motion for the resettlement in respect to these two amendments should he reversed, and in all other respects affirmed, without costs to either party.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.