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Seligman v. Hahn

57 N.Y. St. Rep. 527 Court N.Y.C.P. Decision date 1894-02-05 English

Delivered by Bischoff, J.

Contents

Majority

p. 527
David Seligman, Resp’t, v. Isaac Hahn, Appl’t.
(New York Common Pleas, General Term,
Filed February 5, 1894.)

Headnote

1. Appeal—Pleading.
Where the defendant has omitted to object to the sufficiency of the complaint on the trial, and the defect is one capable of amendment, it is too late to urge the objection on appeal.
2. Same—Objection.
The power of the appellate court to reverse without an objection or exception in the record, refers only to appeals to the general term of the trial court.
3. Same.
Objections to admission of evidence are valueless, if not made until after the witness has answered and no motion is made to strike out such answers, or if no grounds are stated.
4. Co-pabtnebship—Action.
One partner may sue his co-partner at law upon his express promise, or when the cause of action is distinct from the partnership accounts and does not involve their consideration.
Appeal from a judgment of the general term of the city court of New York which affirms a judgment for plaintiff at trial term on a verdict in his favor; and from an order of the general term which affirms an order denying defendant’s motion for a new trial based on the minutes. :
Action by one of two former co-partners to recover against the other upon his promise to indemnify the former to the extent of one-half of the loss of particular demands in favor of the co-partnership firm, and which demands, pursuant to the terms of an agreement dissolving the co-partnership, plaintiff had consented to accept as part of his share of the assets in consideration of the aforesaid promise.
Epstein Bros., for resp’t; H. M. Whitehead, for appl’t.

Where the defendant has omitted to object to the sufficiency of the complaint on the trial, and the defect was one capable of amendment, it is too late to urge the objection on appeal. In such a case, the plaintiff is entitled to the benefit of the cause of action as established by the evidence. Knapp v. Simon, 96 N. Y., 284 . The cases cited for appellant to the effect that the appellate court may reverse without an objection and exception in the record have reference only to appeals to the general term of the trial court. Baylies’ New Trials and Appeals, 301, 333; Schwinger v. Raymond et al., 105 N. Y., 648 ; 7 St. Rep. 544 . The position of this court towards the city court of New York is in this respect the same as that of the court of appeals towards the supreme and superior city courts. Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553 .

Defendant’s promise was not one to answer for the debt, default or miscarriage of another, but one to indemnify the plaintiff for a total or partial failure of consideration. Hence the law governing the enforcement of a guaranty cannot be applied. Ralph v. Eldridge et al., 137 N. Y., 525 ; 51 St. Rep., 168 ; Milks v. Rich, 80

p. 528
N. Y., 269 . The motion for dismissal of the complaint, therefore, which was made when plaintiff rested, and based upon the ground that plaintiff had not exhausted his remedy against the debtors of the firm, was properly denied.

We are precluded from inquiry into the sufficiency of the evidence in support of the recovery by the absence of a valid exception to the denial of a motion for dismissal of the complaint, or the direction of a verdict for defendant, when the introduction of evidence was concluded for both parties, and the cause was about to be submitted to the jury, Schwinger v. Raymond et al., supra. A motion for dismissal of the complaint was made upon the ground that an action at law was not maintainable by one co- ■ partner against another concerning any matter growing out of their co-partnership relations. No exception to the denial of the motion was taken, nor is the denial urged as error on this appeal. The ground stated for the motion was clearly untenable One partner may sue another at law upon his express promise. Casey v. Brush, 2 Caines R. 293 ; Arnold v. Arnold, 90 N. Y., 580 ; or when the cause of action is distinct from the'partnership accounts and does not involve their consideration. Ferguson v. Baker, 116 N. Y. 257 ; 29 St. Rep., 626 .

The objections to rulings on the trial are valueless upon two grounds. They relate exclusively to the admission of testimony, but it appears that they were not made until after the witness had answered the questions, and that no motion was made to strike the answers out. Platner v. Platner et al., 78 N. Y. 90 . No ground for the objection was given in either instance; Cruikshank v. Gordon, 118 N. Y. 178 ; 28 St. Rep., 784 ; Crawford v. Met. Elev. R. R. Co., 120 N. Y. 624 ; 30 St. Rep. 866 ; Stouter v. Manhattan R’way Co., 3 Silvernail, Court of App. R. 472; 38 St. Rep. 162 .

The judgment and order should be affirmed with costs.

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