Hyperlawhypertext legal database Frecking v. Rolland 33 N.Y. Super. Ct. 499

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Frecking v. Rolland

33 N.Y. Super. Ct. 499 1 Jones & S. 499 Court N.Y. Super. Ct. Decision date 1871-12-31 English

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p. 499
HENRY FRECKING, Plaintiff and Appellant, v. ADOLPH ROLLAND and REBECCA ROLLAND, Defendants and Respondents.

Headnote

Where the court on a trial directed the jury to find a verdict for the defendant, and the plaintiff made no request to the court to submit any question of fact to the jury, the objection cannot be afterwards taken on appeal. Upon an appeal in a case where no such requests were made to the court below, the only question for consideration is whether, upon the unconfroverted facts, the direction of the court was not erroneous. But where the evidence was at all conflicting, it cannot be objected for the first time on an appeal that the case should have gone to the jury. These cases approved: O’Neil ®. James, 43 W. T. 84 ; Burge ®. Robinson, 5 Robt. 1 and 31.)
In order to charge the separate estate of a married woman, with a contract made and entered into by her, it must clearly appear, from the contract itself, that it was her intention so to charge her separate estate or the consideration or money obtained by and through the contract must be for the direct benefit of the estate itself. These cases cited and approved: Tale ®. Dederer, 18 JV. Y. 365, and 83 M Y. 450; White ®. MeNett,’33 W Y. 371; Owen ®. Cawley, 36 AT. Y. 600; Ballin ®. Dillaye, 37 JST. Y. 35; Corn Ex. Ins. Co. ®. Babcock, 43 N. Y. 613 .
Before Monell and Spencer, JJ.
Decided December 31, 1871.
Appeal from a judgment.
The action was brought against the defendants, hnsband and wife, to recover upon the following promissory note :
$1000. New Torlc, Novbr. 17th, 1870.
Thirty days after date we promise to pay to the order of Mr. Henry Frecking the sum of One Thousand
p. 500
Dollars, at 401 Fifth Street, 1ST. Y. city, for value received.
U. S. Revenue Stamp BOc. cancelled.
A. Holland.
B. Holland.
Due Decbr. 20th, 1870.
The defendants answered separately. Hebecca Holland alleged in her answer:
I. That at the time of the making and delivering of the note set forth in the complaint, she was and still is a married woman, the wife of the defendant, Adolph Holland.
II. That the note was made solely for the accommodation of said Adolph Holland, and without any consideration ensuing from said Holland,, or any one else, to Mrs. Holland.
On the trial, before Mr. Justice Freedman and a jury, Mrs. Holland established by proof the allegations of her answer, and the court directed a verdict in her favor.
The plaintiff appealed.
D. M. Porter, for appellant.
L. C. Waehner, for respondent.

There was perhaps some very slight evidence, that the plaintiff made the loan to Mrs. Holland. But it was so slight, and was so distinctly contradicted by her, that it was probably not error to withhold that question from the jury. But if it was otherwise, the objection cannot be taken now. There was no request made at the trial to submit any question to the jury, and it is well settled, that unless such request is made, the objection cannot afterwards be taken (O’Neil v. James, 43 N. Y. (4 Hand) 84). This rule, now so well established, is entirely in accord with the views expressed in Bunge v. Robinson, 5

p. 501
Robt. 1 and 21. Mr. Justice Joxes there says, where there are no requests, the only question for the court is, whether, upon the uncontroverted facts, the direction was not erroneous. But where" the evidence is at all conflicting, it cannot be objected for the first time on appeal, that the case should have been given to the jury-

The only remaining question, therefore, must be examined without reference to any of the disputed facts, and as if the jury had found, that Mrs. Holland signed the note, merely as surety for her husband.

Looking at the case in that light, it cannot be distinguished from Yale v. Dederer ( 18 N. Y. 265 , and 22 Id. 450). In that case, it was clearly and distinctly held, that in order to charge her separate estate, by a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge ; or the consideration must be obtained for the direct benefit of the estate itself. That case has not only not been disturbed by any subsequent case, but has been expressly recognized and approved by all of them (White v. McNett, 33 N. Y. 371 ; Owen v. Cawley, 36 Id. 600 ; Ballin v. Dillaye, 37 Id. 35 ; Corn Ex. Ins. Co. v. Babcock, 42 Id. (3 Hand) 613).

As Mrs. Holland expressed no intention of charging her separate estate, and there was no proof that the money was obtained for the benefit of her separate estate, neither she nor her estate is liable, and the direction of the court below was correct.

Judgment affirmed.

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