Brown v. Richardson — 14 N.Y. Super. Ct. 402

Majority

p. 402

A. Speirs Brown, Plaintiff and Respondent, v. Richardson, Appellant.

Headnote

In an action upon a note, by which the makers promise to pay to a third person or order, a sum named, in merchandise, a complaint, which alleges the making 'and endorsement of the note to the plaintiff, and that the plaintiff “is the lawful owner and holder of it," is sufficient, on these allegations being put at issue, to admit evidence of an actual sale and delivery of the note to the plaintiff. The examination, by the plaintiff, of his assignor of the cause of action, does not, as the code read in October, 1855, authorize a defendant to be examined in his owp frehalij except as to the same matter.

Meld, that as he offered himselfj as a witness, “ generally on his own behalf,” and as . the offer was understood and treated by the Court and counsel as an offer to examine him on matters, as to which the assignor had not been examined, or not at all, the offer was properly excluded. On an appeal from a judgment in an

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action tried before a jury, the action will not be examined, as to its general merits, upon the whole evidence; whether the verdict is against evidence can only be considered by the Court at General Term, upon an appeal from an order granting or refusing a new trial

(Before Bosworth & Woodruff, J.J.)

Heard, June 9;

decided, June 27, 1857.

This action was brought against Frederick Gr. Richardson and David Woods, as defendants, and comes before the Court, on an appeal, from a judgment in favor of the plaintiff, taken by the defendant; Richardson only. It was tried before Mr. Justice Campbell and a jury in October, 1855. It is brought to recover the amount payable by eight several instruments, in writing, called in the complaint promissory notes, They are, all, of the same date, and in the same form, but are for different amounts, and payable on demand, after different periods, The one first payable reads thus:

“ New York, April 22d, 1850. $258,75:100. "

For value received, we jointly and severally promise to pay O. L. Brown or order, in merchandise, on demand, after Nov. 1, 1850, two hundred and fifty-eight 75-100 dollars.

Endorsed F. G. Richardson

C, L. Brown. David Woods.”

The complaint after averring that the defendants made each of said notes and describing them proceeds thus:

“This plaintiff further says, that said notes were duly endorsed by the said O. L. Brown to this plaintiff, and that he is the lawful owner and holder of said promissory notes; and although the said notes became due and payable, and the payment thereof was duly demanded of said defendants before the commencement of this suit, yet the said defendants have not paid the same or any part thereof.”

It then avers that the defendants “ are now justly indebted’ to the plaintiff in the full amount of each of such notes, with interest from their dates, and prays judgment therefor.

The answer of Richardson, inter alia, puts in issue the allegations, as to the endorsement of the notes to the plaintiff, and as to his being the lawful owner and holder of them.

On the trial, C. L. Brown, was admitted as a witness for the

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plaintiff, against the objection and exception of the defendant, the objection being, “ that the complaint does not show any sufficient transfer of the notes, upon which this action was brought.” When the plaintiff offered to read the notes in evidence, the defendant “objected on the same ground as raised to the witness,” which was over-ruled, and he excepted; when the plaintiff rested.

' “.The defendants’ counsel moved for a dismissal of the complaint, on the ground that the notes or contracts stated in the complaint were not negotiable or transferable as promissory notes, and that there was no transfer proven to entitle the plaintiff to maintain this action; which motion was denied, and the defendants’ counsel excepted.”

The .evidence of an actual sale and delivery of the notes, by C. L. Brown to the plaintiff, was explicit and uncontradicted, and was given by Brown, on his cross-examination, by the defendants’ counsel.'

“ The defendants’ counsel called Frederick G. Fichardson, one of the defendants in this action, generally on his own behalf, to whom the plaintiff’s counsel objected, which objection the Court sustained, and the defendants’ counsel duly excepted.”

The plaintiff obtained a verdict, under a charge, from the Court, which is not set out in the case, and to which no exception appears to have been taken. Judgment having been entered on the verdict, the defendant, Richardson, appealed from it to the General Term.

John Cook, for the appellant, contended that,

“ The Judge erred in allowing these alleged notes to be read in evidence under the defendant’s exception, they not being either negotiable or promissory notes, but a mere memorandum to have an amount in merchandise, and this complaint is wholly defective in the necessary form and averments to recover on these memorandums, falsely called promissory notes, as for money, when they are a contract only to deliver goods.

“ Also, the Judge erred in not dismissing this complaint, as moved for by defendants, upon the plaintiff resting.”

John Andrews, for plaintiff and respondent.

The defendant, Richardson, offered himself, “generally on his own behalf," as a witness, and was excluded. To the decision excluding him, his counsel excepted. The plaintiff’s assignor, of the causes of action stated in the complaint, was examined as a witness on behalf of the plaintiff. But the examination of such assignor did not authorize the defendant to be a witness generally on his own behalf, but only “ to the same matter ” as to which the assignor had been examined (this action having been tried in October, 1855).—Code, § 399; Laws of 1851, p. 903. It is apparent from the case, as we think, that this offer was made, and that the Court and counsel treated and understood it, as an offer to examine Richardson to matters as to which the plaintiff’s assignor had not been examined, and that the defendant, Richardson, did not desire to be examined at all, if the examination was to be restricted to the same matters to which the assignor had been examined. The offer thus viewed was properly rejected. This exception is not noticed in the printed points of the appellant, submitted on this appeal; but, finding it upon the record, it seemed to us that it should not pass unnoticed.

But the appellant’s counsel contends that the complaint is fatally defective.

It is true that, the notes are not negotiable in such sense, that an assignee of them could maintain an action upon them at common law, in his own name. But they are vendible and assignable. They are correctly described in the complaint. The complaint states, that they were duly endorsed to the plaintiff, that he is the lawful owner and holder of them, and that payment of them, before the commencement of this suit, was duly demanded, and that no part of them has been paid. These allegations having been put at issue, are sufficient to admit proof of an absolute sale and delivery of the notes to the plaintiff, and of a demand of payment of them, and of a refusal by the defendants to pay^[1] We must presume that the cause was submitted to the jury under proper instructions, as the charge does not appear in the case.

* See Prindle v. Caruthers, 15 N. Y. R. 435.

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We are not at liberty to review the evidence, as to the general merits of the action, as no appeal has been taken from any order of the special term, denying a motion for a new trial. We cannot ascertain from the case before us that the defendant applied to the special term for á new trial, on the ground that the verdict was against evidence.

Hone of the exceptions, presented for our consideration, being well taken, the judgment must be affirmed, with costs.