New York & Erie Rail Road v. Cook — 4 N.Y. Super. Ct. 732

Majority

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The New York and Erie Rail Road Company v. Cook.

Headnote

Upon a case made, a party cannot move to enter a non-suit, or for a new trial, on a ground not distinctly taken at the trial, if it be such as might have been obviated by proof, had it been presented at the trial.

A stockholder of a stock corporation, is a competent witness for the corporation under the recent statutes.

(Before Oakley, Ch. J., and Paíne, J.)

May 24;

June 8, 1850.

This was an action against a stockholder, to recover calls on his shares made by order of the board of directors.

On the trial, Morris Ketchum was called as a witness for the plaintiffs, and it being admitted that he was then a stockholder of the company, the defendant objected to his competency, the objection was overruled, and the defendant excepted.

After the plaintiffs rested, the defendant moved for a non-suit, which was denied, and an exception taken. The plaintiffs had a verdict, and the defendants on a case, moved, for a new trial. The opinion of the court states all that is material to the points reported,

S. Sanxay, for the defendant,

H. E. Davies, for the plaintiffs.

We have no doubt that Mr. Ketchum was a competent witness, under the recent provisions of law on that subject.

At the trial, the defendant moved for a non-suit, without specifying any ground for it. He now states, as a ground for a non-suit, that some material allegations were not made in the declaration, and that others were not proved. As for example, that there was no proof of the organization of the company, and none that the defendant had received notice of the calls made on the stock, or that any notice was given as required by the charter. The others are of the same description.

It is a well established rule, that a party Cannot move for at

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new trial, or for leave to enter a non-suit, on a point not distinctly taken at the trial, if it be such a point as might have been obviated by proof, if it had been then raised. In this case, every ground now presented to us, is of that character. All might, as we cannot fail to see, have been obviated, either by amending the declaration or by evidence.

If the objections were in their nature such that they could not have been obviated if made at the trial, probably a different rule would be applied.

New trial denied.