Brower v. Orser — 15 N.Y. Super. Ct. 365

Majority

p. 365

Phoebe C. Brower, by her next friend, Plaintiff v. John Orser, Sheriff, etc., Defendant.

Headnote

1. It is irregular to take a verdict subject to the opinion of the Court at General Terra, when there are facts to be settled upon contradictory or doubtful testimony.

2. The General Term has no right, of itself, to deduce facts from evidence, in order to found a judgment.

3. The amendment, in 185*7, of the 333d section of the code, has not varied this rule, or established another, in relation to proceedings that may be had at the trial, or in relation to the powers and duties of the Court at General Term,

(Before Hoffman and Pierrepont, J. J.)

Heard, Jan. 13th;

decided, Jan. 30th, 1858.

This case comes before the Court, on a verdict taken for the plaintiff, valuing the property in question at the sum of $200, subject to the opinion of the Court at General Term, with liberty to the Court to enter judgment of dismissal, and with liberty to either party to turn the case into a bill of exceptions.

The cause was tried in May, 1854, before the late Chief-Justice Oakley, and a jury. Certain exceptions were taken by the de

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fendant to his rulings, in rejecting testimony, which were not pressed on the argument, and which the Court, at General Term, thought were clearly untenable.

The facts are these: The plaintiff intermarried with one Abraham Brower, in the month of August, 1848. On the 24th of March, 1849, her husband went to California, where he resided until 1851, when he returned to New York, and has lived with his wife, the plaintiff, ever since.

The plaintiff had, for many years prior to her marriage, kept a boarding-house, in Green street, and elsewhere. In May, 1849, she moved to Mulberry street, and took a lease of the premises, in her own name, for two years. Her husband was then absent.

In August, 1849, one Thompson sold a piano to the plaintiff, for the sum of $240. The purchase-money was adjusted, by crediting him with a board-bill he had incurred with the plaintiff, of about $60, and an agreement, that he should board out the balance, which he did. The $60 had, no doubt, accrued for board after the marriage.

The piano was used in Mulberry street, for the period that the plaintiff remained there, and was carried with her where she removed.

About the 18th day of October, 1853, the Sheriff of the County of New York, the present defendant, received an execution upon a judgment obtained, in favor of L. & J. R. Ingersoll, against Abraham Brower, the plaintiff’s husband; and, under such execution, he levied upon the piano. The judgment was upon a debt contracted before the marriage.

The testimony of John R. Ingersoll was taken, as to certain admissions of Mrs. Brower, the plaintiff, of having received money from her husband, in California, to pay for a piano, which is particularly stated in the opinion.

J. M. Van Cott, for plaintiff.

A. J. Vanderpoel, for defendant.

A similar question to that which arises in the present case, has been before the Court, in the

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late cases of Freeman v. Orser, ( 5 Duer, 476 ,) and Burger v. White, (November Term, 1857, Ante p. 92.) Under what circumstances, property, resulting from the earnings and labor of a wife, can be exempt from seizure by the husband’s creditors, is the point there and here raised. Whether the present case would be governed by the one or the other of those decisions—whether it would fall within the general principle of the former, or the exception established in the latter, would require a careful analysis, of both, and comparison of the facts. We are not called upon to determine this question, for there is one point which compels us to send the case back for a new trial.

The verdict was taken by consent, subject to the opinion of the Court, with liberty to dismiss the complaint. This course is permitted by the Code, when, upon a trial, the case presents only questions of law. In that case, judgment may be given at the General Term. (§ 265.)

All this presupposes settled, or undisputed facts. It is contrary to the theory of a trial by jury, and unwarranted by the Code, to take a verdict, subject to the opinion of the Court, when facts are to be deduced from disputable or uncertain evidence.^[1]

We do not understand, that the amendment made in 1857, to the 333d section of the Code, varies this rule. It directs a concise statement of the facts, upon which the questions or conclusions of law arose, to be prepared by the Court, (of course, at General Term,) and be filed with the judgment roll. But those facts must, we presume, have come before the General Term, ascertained and settled, or admitted in the usual manner, or be established by evidence to which there is no contradiction, and the force and effect of which is not doubtful. This statement is made “for the purposes of a review in the Court of Appeals,” and for such purposes only. (Laws of 1857, chap. 723, § 11, as amended, sub. 2, and § 333, as amended.) It is not a statement of facts found by the Court upon doubtful or conflicting evidence, but a summary of the facts, in relation to which there is no doubt or dispute, out of which facts the questions of law arise, which the Court is called on to determine, and which alone they decide.

Now, Ingersoll swore positively to admissions of the plaintiff,

* Cobb v. Cornish, (16 KT. Y. B. 602.) Gilbert v. Beach, (Id. 606.)

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that she had received money ($250) from her husband in California, and that the piano seized, belonged to her husband. He also stated, that she said she had paid for the piano with money received from him.

Eow this would not be true, in fact, as the purchase was made in August, 1849, and the husband did not get to California until September. The witness fixes the conversation with the plaintiff to have beén in 1850.

Yet it by no means follows, that she may not have said all that is deposed to, and still less, that the main fact, of a remittance to purchase a piano, may not have been admitted, and loosely spoken of, as having been applied to pay for it.

This matter should have been submitted to the jury.

New trial ordered, costs to abide the event.