Purchase v. New York Exchange Bank — 23 N.Y. Super. Ct. 564

Majority

p. 564

John Purchase, Plaintiff and Appellant, v. The New York Exchange Bank, Defendants and Respondents.

Headnote

1. .The Court will not entertain an application for judgment on a verdict taken subject to the opinion of the Court at General Term, upon a case where there is a disputed question of fact, and exceptions were taken to the exclusion of evidence. Such trial is a mistrial.

2. The Court below should, in such case, have directed the cause to be heard upon the exceptions in the first instance at General Term, if the questions ought first to have been determined there.

(Before Robertson and Barbour, J. J.)

Heard, December 8, 1862;

decided, April 25, 1863.

This action was brought to recover damages for a refusal on the part of the defendant to transfer shares of its capital stock on its books to the name of the plaintiff.

The action was tried before Ohief Justice Bosworth and a Jury, on the 26th and 27th days of June, 1862.

The plaintiff claimed title to the stock in question, under a sale by a Receiver appointed in supplementary proceed

p. 565

ings against one Wheaton, the former owner of and original subscriber for the stock.

The evidence was conflicting, and at the close of the trial, as stated in the printed case presented to the Court on this appeal, the Court, by consent of counsel on both sides, submitted to the Jury a question of fact depending on that evidence, and the Jury finding therein as the defendant claimed, the Court ordered a verdict for the defendant, subject to the opinion of the Coxirt, on a case to be made and to be heard in the first instance at the General Term.

To this the counsel for plaintiff excepted.

W. Fullerton, for plaintiff, appellant.

A. S. Van Duzer, for defendants, respondents.

Ho judgment appears to have been entered, or appeal taken, in this case. It comes before xxs upon a direction alleged to have been made on the trial, that the verdict taken be sxxbject to the opinion of the Court at General Term.

The testimony of the plaintiff, and of the president of the defendants, is in direct conflict as to the fact of notice by the former, of his rights, to the latter, which may be essential to the good faith of the permission by the latter allowing a transfer to a purchaser from a Beceiver. There were also exceptions, in the cause, to evidence.

A disputed question of fact, and conflicting evidence in relation thereto, and exceptions to the exclusion of evidence, prevent a Court at Special Term from sending a cause to be heard in the first instance at General Term, unless on exceptions. (Cobb v. Cornish, 16 N. Y. R., 602; Gilbert v. Beach, Id., 606; Brower v. Orser, 2 Bosw., 365 ; Sackett v. Spencer, 29 Barb., 180 ; Code, § 265.) Without such questions, the verdict is a mere matter of form to be changed according to the view of the Court at General Term.

p. 566

The case in this instance was settled without submission to the Judge who tried the cause. The Clerk’s minutes' show there was no reservation of a right to move for judgment at Special Term. If the order had been that the exceptions be first heard at General Term, this Court might have disposed of the numerous weighty questions involved in the case. As it is, upon the papers before us, we can only decide that we have no jurisdiction to interfere at General Term with the verdict at Special Term, and leave the parties to their remedies, if any, otherwise.