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Romano v. Irsch

57 N.Y. St. Rep. 493 Court N.Y.C.P. Decision date 1894-02-05 English

Delivered by Daly, C. J.

Contents

Majority

p. 493
Francesco Romano et al., Resp’ts, v. Francis Irsch, App’lt.
(New York Common Pleas, General Term,
Filed February 5, 1894.)

Headnote

1. Pleadings—Reply.
Allegations in an answer which, though inform a counterclaim, merely negative any liability of plaintiff, require no reply.
8. Same.
But, in case it is tried upon its merits as a counterclaim, this concession on the part of the plaintiff does not deprive him of the right to interpose any defense to it which he could have set up if it had been properly pleaded.
8. Evidence.—Charter party.
A charter party, though the defendant is not named therein, is admissible in evidence, where it was made for his benefit and he was consignee of the cargo.
4. Same.—Documentary.
An error in the admission of documents, purporting to come from the the defendant, without proof that he issued or authorized them, is cured by subsequent uncontradicted evidence that certain of them were in his handwriting and the others issued by his authorized agent.
Appeal by defendant from an affirmance by the general term of the city court of a judgment in plaintiffs’ favor, entered on the verdict of a jury. Appeal from an order denying defendant’s motion for a new trial.
John Mulholland, for app’lt; Gonvers & Kirliii (J. Parlcer Kir lin, of counsel) for resp’ts.

The plaintiff’s sued, as owners of the bark “ Gruilio R,” for carrying a cargo of bones consigned and delivered to defendant. The charge for freight was $1,334.33, and the defendant was credited with sundry payments thereon, leaving a balance of $210,43. The answer was a general denial and a counter-claim of damages for failure to deliver the cargo in conformity with the charter-party. It is a peculiarity of the counterclaim that it. expressly avers that the bark “ G-uilio R ” was not owned by the plaintiffs, and yet is based upon an alleged contract made with the bark. These allegations negative any liability of plaintiffs for the breach of contract, and the answer, therefore, contained no counterclaim against them and the plaintiffs were justified in interposing no reply. Upon the trial of the action, however, it was amply proved that the plaintiffs were the owners of the bark and the counter-claim was tried upon its merits, with

p. 494
the result that the jury disallowed all the alleged items of damage. Mow it is urged that, there being no reply, the counterclaim was admitted, and there was no issue thereon to be submitted to the jury. This position is wholly untenable. The counter-claim as pleaded called for no reply, and when it was afterwards tried upon its merits this concession on the part of the plaintiffs did not deprive them of the right to interpose any defence to it which they could have set up if it had been properly pleaded, Arnold v. Angell, 62 N. Y. 508 ; Heyman v. Schmidt, 19 N. Y. Supp. 215 ; 46 St. Rep. 194 .

The counterclaim was properly disposed of on its merits. The delay in the delivery of the bones was due to legal proceedings not instituted by the plaintiffs and for which they were in no wise responsible. Mor are plaintiffs chargeable with the amount of wharfage which defendant paid in order to release his goods, wharfage being no charge against the cargo.

The principal complaint of the appellant is in the admission of evidence. The charter-party was admitted although defendant was not named therein. It subsequently appeared, however, that he was the consignee of the cargo and that the charter-party was made for his benefit. Its admission, however, in no wise injured him, for the dispute upon the trial had reference solely to the merits of the counterclaim. Other documents purporting to come from defendant were admitted without proof that he issued them or authorized them but this error was cured by subsequent uncontradicted evidence that certain of them were in his handwriting and the others issued by his authorized agent Byrnes v. Byrnes, 102 N. Y. 4 . An examination of the case fails to disclose error in the rulings on the trial.

The judgment and order must be affirmed with costs.

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