Mapelsden v. Shea — 56 N.Y. St. Rep. 603

Majority

p. 603

Reuben Mapelsden, Resp’t, v. Thomas J. Shea et al., App’lts.

(New York City Court, General Term,

Filed November 27, 1893.)

Headnote

Appeal—Dismissal.

In an action against two defendants, where there is no evidence offered which shows any liability on the part of one defendant, a refusal to dismiss the complaint as to him, on motion, is error.

Appeal from a judgment in favor of the plaintiff.

Reuben Mapelsden, in person, pl’ff and resp’t; William King Hall, for def’ts and app’lts.

In May, 1889, the defendants applied to the Harlem Savings Bank for a loan of $5,000 upon certain property at the time owned by the defendant Annie A. Shea, which was to be a first mortgage upon the premises; at the time there was a bond and mortgage held thereon by one Bertine of $1,100 made by defendant Thomas J. Shea. The plaintiff was the attorney and counsel for the bank. At the time of closing the title, the attorney for the mortgagee (Bertine) demanded an additional ninety dollars for interest claimed to be due. The plaintiff thereupon advanced and paid said amount to Bertine’s attorney. He brings this action to recover such advances, claiming the same were paid for the use of the defendants. The answer after alleging that the property encumbered belongs to .the defendant Annie A. Shea, is a general denial. On the trial, after the plaintiff’s case had been closed, a motion was made by defendant to dismiss the complaint against the defendant Thomas J. Shea, which motion was denied, and exception taken.

The trial justice erred. There was no evidence offered that showed any liability on the part of this defendant. The property belonged to the defendant Annie Shea, and whatever benefits accrued from the advances made by plaintiff accrued to her and her property.

Thomas J. Shea had no interest in the property as principal or otherwise, and the mere fact that he executed the bond which accompanied the Bertine mortgage created no liability on his part for any advances made by plaintiff. There is no evidence in the case which shows that he authorized or empowered the plaintiff to pay the additional interest. The motion to dismiss as to defendant Thomas J. Shea should have therefore been granted. As to the defendant Annie Shea, the evidence clearly shows that the moneys sought to be recovered in this action' were advanced for the benefit of real estate belonging to her. The record shows no error in the trial of the case as against her. The judgment as to the defendant Thomas J. Shea is reversed and a new trial ordered, with costs to abide the event; as to defendant Annie Shea, judgment affirmed, with costs.

Van Wyck, J., concurs.