Eisemann v. Swan — 19 N.Y. Super. Ct. 668

Majority

p. 668

Mayer Eisemann, Plaintiff, v. Siskint Swan and Joseph Swan, Defendants.

Headnote

1. The requisites of a special verdict are not other or different under the Code, of Procedure, than they were under the practice as settled before the Code was enacted.

2. A general verdict determines all the issues in favor of one of the parties. A special verdict should find all the facts which are requisite to enable the Court to say—upon the pleadings and verdict without looting into the evidence—which party is by law entitled to judgment.

3. And when a special verdict is taken subject to the opinion of the Court, the Court are not warranted in examining the evidence given on the trial, for

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the purpose of determining what judgment ought to be given, however clear and satisfactory the evidence may be upon the facts in issue not disposed of by such verdict.

4. Where a general verdict is found and particular questions of fact are also answered by the jury, the general verdict decides all the issues, and if the findings upon the particular questions are not inconsistent therewith, judgment follows the general verdict; so that, in such case, the Court has a finding upon all the facts in issue.

5. Where a special verdict only was taken and that verdict did not dispose of all the material issues, and such verdict was taken subject to the opinion of the Court at General Term, with liberty to the Court to render judgment for the plaintiff or the defendants according to law and the facts found, the General Term cannot consider the case upon the merits nor pronounce any judgment, but will order a new trial.

(Before Woodruff, Pierrepont and Robertson, J. J.)

Heard, March 14th;

decided, April 18th, 1860.

This action, was tried on the 22d day of June, 1859, before Mr. Justice Pierrepont, and a jury. The issues therein, so far as it is material to state them for the purposes of the case as decided in General Term, were as follows:

The complaint alleged that on the 22d day of August, 1857, the defendants forcibly took and carried away certain goods and chattels of the plaintiff, of the value of $6,000, and converted them to their own use.

The answer denied these allegations, and also averred, that on the day of August, 1857, an attachment against the property of one Solomon Meyer, as a concealed or an absconding debtor, and in favor of the defendants, was issued out of, and under the hand of one of the Justices of the Supreme Court, directing the Sheriff to attach, &c., the property of Solomon Meyer, or so much thereof as would satisfy the demands of the plaintiffs therein (these defendants,) and that the Sheriff, by virtue of such attachment, seized and attached certain goods and chattels of the description in the complaint mentioned, and at the place designated) the same being the property of the said Meyer and not the property of the plaintiffs. And that the said property was not of any other or greater value than the sum of $3,000.

The case submitted to the General Term shows that these issues were brought to trial, and that the only questions submitted to the jury, and the only verdict taken were as follows, viz. •

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“ 1st. What was the value of the property in question when taken by the Sheriff?

“ The jury answer $2,500, and that interest thereon to the present time is $320.80.

“2d. Did Solomon Meyer make the assignment in question with the intent to hinder, delay or defraud the creditors of the said Solomon Meyer of their lawful debts or demands ?

“Jury answer, ‘Yes.’

“ The foregoing verdict is taken subject to the opinion of the Court at General Term, with liberty to the Court to render judgment for the plaintiff or defendant according to the law and the facts above found.

“Judgment in the meantime suspended; to be heard at the General Term in the first instance.”

No other verdict or determination of the issues between the parties was had or taken.

It appeared by the case that proofs were given showing that the plaintiff claimed the property in question under an assignment made to him by Solomon Meyer, in trust, for the payment of creditors; that the defendants were partners in trade; that the goods were taken by the Sheriff, by direction of Joseph Swan, one of the plaintiffs, under an attachment issued in their favor against the property of Solomon Meyer; and proofs which it was claimed showed that the assignment was fraudulent and void as against creditors, and proofs on the question of the value of the goods taken.

Some exceptions were taken on the trial to the admission and rejection of evidence—to the ruling of the Court dismissing the complaint as to Siskint Swan—and to the refusal of the Court to charge as requested by the plaintiff’s counsel on the subject of fraud in an assignment.

S. Sanxay, for the plaintiff, argued,

I. That the defendants being partners are jointly liable for the torts of either in the prosecution of the copartnership business. (Moreton v. Hardern, 4 Barn. & Cress., 223; Coll. on Part., 252254, 296-297, 305-307; Story on Part., pp. 257, 260; Coats v. Darby, 2 Comst., 517.) And the complaint should not have been dismissed as to Siskint Swan.

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II. That the plaintiff’s exceptions to the rejection of evidence were well taken.

III. That the defendants, not being judgment creditors, could not impeach the assignment as fraudulent as against creditors. (Andrews v. Durant, 18 N. Y. R., 496.)

IV. That there was no evidence to warrant the Court in submitting the second question to the jury, and that the Court should have charged as requested.

David D. Field, for the defendant, argued,

I. That a fraudulent assignment may be impeached by an attaching creditor. (Cross v. Phelps, 16 Barb. R., 502; Thayer v. Willet, 5 Bosw., 344 .)

II. That the plaintiff’s exceptions are not well taken; and the complaint was properly dismissed as to Siskint Swan, against whom there was no evidence, except that he was a copartner with Joseph Swan. (Averill v. Williams, 1 Denio, 501 ; 4 id., 295.)

The General Term are constrained to decline pronouncing any judgment upon this verdict. It is imperfect, and does not furnish the facts necessary to warrant any judgment upon the issues raised by the pleadings.

We think the verdict was taken under an erroneous impression in the minds of the parties respecting the requisites of a special verdict, when that alone appears upon the record in an action for the recovery of money only, or of specific real property.

In this respect, there is nothing in the Code of Procedure to warrant the idea that the requisites of a special verdict are other or different now than they were before the Code was enacted.

A general verdict determines the entire issue in favor of the plaintiff or the defendant.

A special verdict finds all the facts which are requisite to enable the Court to say, upon the pleadings and verdict, which party is by law entitled to judgment, without referring to the evidence. The pleadings and the special verdict together should show, when separated from all else that, appeared on the trial, and as a complete record, that one or the other party is, as mere matter of law, entitled to judgment. For the purpose of determining what judgment shall be given, the Court are therefore

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not warranted in examining the evidence given on the trial, and ascertaining what other facts were proved which were denied in the pleadings, however clear and satisfactory the evidence may be. (Jenks v. Hallet, 1 Caines’ R., 60; Williams v. Jackson, 5 J. R., 502. See this subject fully discussed by Jones, Chancellor, in Seward v. Jackson, 8 Cow., 409 , et seq.) He says: “ It is of the essence of a special verdict that it should be a finding by the jury of the facts on which the Court is to pronounce the law. * * * The jury is to find the facts in issue between the parties. * * * To the Court it belongs to apply the law to the facts, but the Court has no jurisdiction to decide upon evidence, or to enter into any question of fact that may arise in a cause. This is a cardinal rule in the law of special verdicts, which has always been observed and enforced by courts of law, and ought, in my opinion, never to be relaxed.” (See also Rex v. Aire & Calder Navigation, 1 T. R., 666; Bird v. Appleton, 1 East, 111; Hubbard v. Johnstone, 3 Taunt., 209; La Frombois v. Jackson, 8 Cow., 600 ; Williams v. Williams, 7 Abb. Pr. R., 90.)

There are no provisions in the Code modifying this rule; on the contrary, the definition of a special verdict is in affirmance of the rule. “A special verdict is that by which the jury find the facts only, leaving the judgment to the Court.” (Code, § 260.) By the plainest implication, this imports that the special verdict must contain all the facts which are in issue by the pleadings, the determination of which is necessary to enable the Court to give judgment, and it clearly excludes the idea that the Court can look into the evidence itself to ascertain the facts, or any of them.

In the case before us, the answer denies that the defendants took and carried away the plaintiff’s goods. The jury have not found that they did so. A conversion is alleged in the complaint, and denied in the answer; there is no finding on the subject.

The answer alleges the issuing of an attachment against the property of Solomon Meyer. This allegation is in issue by the Code of Procedure, and there is no finding on the subject. The answer avers that the property taken by virtue of the attachment was not the property of the plaintiff, but was the property of Solomon Meyer. The finding of the jury does not dispose of the issue upon that allegation.

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In short, it does not appear, by the pleadings and verdict, that the defendants have been guilty of any wrong, nor that the plaintiff has established any right.

The Code permits a j ury, in actions “ for the recovery of money only, or specific real property,” to render a general or special verdict, in their discretion. If they find a general verdict, that, of course, disposes of all the material issues. If they find a special verdict, they must state all the facts which are material to enable the Court to say, upon the pleadings and verdict only, to which of the parties judgment should be awarded.

“In all other cases the Court may direct a special verdict in writing upon all or any of the issues.” This enables the Court, in cases in equity, to submit those questions to the jury, and those only, upon which the aid of a jury is desired, and to determine for itself the other issues. This case is not embraced in that provision.

But, “in all cases, the Court may instruct the jury, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.” (Code, § 261.) When this is done, it is obvious that the general verdict disposes of all disputed questions of fact: they are to be deemed found in favor of the party who obtains the verdict; and then, if the facts specially found are not inconsistent therewith, the party has judgment. So that the Court have a finding upon all the facts in dispute.

Probably, in this case, it was the intention to take a verdict under this last provision; but the omission to take a general verdict renders it impossible to say how any of the issues, not covered by the specific questions answered, are to be disposed of.

We could, it is true, if it were permitted by the rules governing the subject, look into the evidence. We could discover what questions appear, by the Case, to have been contested on the trial; and we could say, if all the evidence given on the trial is contained in the printed Case, how, in our judgment, the jury ought to have found upon the issues. But we are not at liberty to do this, and then make our findings of fact the basis of a judgment: and the reasons have already been stated.

Mor does the reservation or stipulation contained in the case enable us to do so. That only authorizes us to render judgment

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according to the law and “ the facts above found.” The facts found are not sufficient to warrant any judgment. They do not determine all the issues of fact raised by the pleadings.

Under these circumstances, we see no alternative but to order a new trial. It is just to our associate, before whom the cause was tried, to say that he informs us that the Case has been made and settled by the parties without his revision or approval; and that it is, in many particulars, an erroneous statement of what occurred at the trial.

New trial ordered; costs to abide the event.