Durant v. Abendroth — 44 N.Y. Super. Ct. 463

Majority

p. 463

CHARLES N. DURANT, Plaintiff, v. WILLIAM P. ABENDROTH, Impleaded, &c., Defendant.

Headnote

I. Bankruptcy proceedings.

1. Res adjudícala, as to special partnership.

(<$) Van Dolsen v. Abendroth, 43 N. T. Superior Ot. 470, followed.

II. Dismissal oe complaint.

1. Moving for, on several grounds, one tenable, others not. (<t) Effect of.

1. The fact that untenable grounds’ are also assigned, will not cure an erroneous ruling on an assigned tenable ground.

1. This, although hut a single exception is talcen to the denial of the motion.

2. No cause of action proven.

(d) What mat be urged in support of this ground.

1. A defense established by conceded or undisputed facts, which shows that the claimed cause of action never existed. 1. E. G.: Res adjudícala against plaintiff on his claimed came of action.

HI. Direction of verdict fob plaintiff on the court’s own

MOTION.

1. Exception to, want of.

{a) Effect on denial of motion to dismiss complaint.

1. Does not- affect defendant’s right to a new trial, if Ms motion to dismiss was well founded.

1. Exceptions oi'dered to he heard at general term. This, although the case comes before the general term upon ■exceptions so ordered to be heard on the court’s own motion.

TV. Trial.—Conduct of.

See dismissal of complaint and direction of verdict, supra.

Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

Decided March 3, 1879.

This is a motion by defendant, Abendroth, for a new trial, upon exceptions taken at a jury trial, a verdict having been rendered in favor of plaintiff, by the direction of the court. The judge ordered the ex

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ceptions to be heard in the first instance at the general term, and the judgment in the meantime suspended.

The plaintiff sued the defendants as copartners in the firm of Griffith & Wundram. The cause of action is a balance unpaid of an account stated. That the account was stated, and the balance sued on found to be due, is admitted by the answer of the defendant, Abendroth, he being the only defendant who answered.

The answer set up that defendant Abendroth was not a general partner, but a special partner only, of the other defendants; that on November 23, 1872, the firm of Griffith & Wundram, and they individually, were duly adjudicated bankrupts; that plaintiff’s claim was duly proved ; that appellant was made assignee; that thereafter the firm was adjudged to be a spécial partnership ; that the assignee paid on said claim a dividend ; and that such adjudication had been in force more than one year before the commencement of this action, and now remains in full force and effect.

Upon the trial, the following proof was given in respect to the bankruptcy defense.

The petition in bankruptcy of George W. Wundram on his own behalf, and against his partner, John Griffith, dated November 23, 1872, and the schedules annexed.

The adjudication in bankruptcy, dated November - 30, 1872, wherein it was “ adjudged that John Griffith and George W. Wundram, and .the copartnership of Griffith & Wundram, became bankrupt before the filing of the petition, and they are therefore declared and adjudged bankrupts accordingly.”

The assignment of all the assets, real and personal, of the firm and the individuals.

The notice to the creditors of the meeting to prove their debts and choose an assignee, with, an order of publication and due proof thereof. Proof of debt upon

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this claim showing that the said Griffith & Wundram, and the persons by and against whom a petition for adjudication of bankruptcy had been filed, at and before the filing of the said petition, were indebted in the sum claimed. That Joseph McDonald & Co., creditors of Griffith & Wundram, presented a petition to have certain claims against said firm that had been assigned to defendan t reheard and disallowed, dated August 6,1873.

That on this petition Judge Blatoheord ordered a rehearing on notice to all the creditors. On the same day the order was issued.

The report and opinion of the register, in which he determines as follows : “It appears from the evidence taken at this second general meeting of the creditors of the bankrupts, that John Griffith and George W. Wundram, the partners in this bankruptcy, were the general partners of the limited partnership of Griffith & Wundram, of which William P. Abendroth, the assignee in bankruptcy, was the special partner.” The register, therefore, concludes: “ the said William P. Abendroth is entitled to reserve and retain the dividend on those claims to his own use.”

Upon this report Judge Blatoheord made this indorsement : “I concur in the conclusions of the register as to the claims above mentioned. October 13, 1875. Samuel Blatoheord, district judge.” He also made an order for payment.

The election- of, and order appointing defendant assignee of said Griffith & Wundram was also shown.

The report of the register shows: “ Colwell Brothers ” (the owners of said claim) “signed the paper at the first meeting of the' creditors of the bankrupts, choosing Abendroth to be the assignee in bankruptcy of the estate and effects of the bankrupts’ the election of Abendroth was unanimous.”

It was admitted that Mr. Abendroth, as such assignee, paid to said Colwell & Brothers, a dividend of

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six per cent, out of the assets of the assigned estate. The complaint alleges that this payment was made on ¡November 17, 1875, and the answer admits it, so that this payment was subsequent to the adjudication.

The court directed a verdict for plaintiff, exceptions to be heard in the first instance at the general term.

Norwood & CoggesTiall, attorneys, and Carlisle Norwood, Jr., of counsel, for plaintiff, on the questions considered in the opinion, urged:

I. The defendant’s counsel moved for the dismissal on three distinct grounds, and took but a single exception to the denial of the motion. It follows that if the refusal of the court to dismiss can be sustained as to any one of the grounds of the motion, then a single exception to the three grounds stated was not well taken, and presents no question for review (Coghlan v. Dinsmore, 1 Abb. Ct. of App. 375 ; Day v. Roth, 18 N. Y. 448 ; Haggart v. Morgan, 5 Id. 422; Buch v. Remsen, 34 Id. 383). The motion to dismiss on the ground that plaintiff had not proved facts sufficient to constitute a cause of action against the defendant Abendroth was properly denied. The answer had admitted the liability of the copartnership of Griffith & Wundram, the defendant Abendroth simply contending that he was not a member of that firm. The proof was that he was a member of that firm, the same facts having been established as were shown when this court before held him liable in the case of Durant v. Abendroth {ante).

II. If the defendant wished to have the right to review the ruling directing a verdict against him, he should not have applied to have the exceptions heard, in the first instance, at the general term, but should have allowed a judgment to be entered, and then could have appealed therefrom, or he might have made a motion for a new trial at the circuit or special term. But he has chosen to rely on his exceptions (Price v. Keyes,

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1 Hun, 180 , 182; Hoxie v. Green, 37 How. Pr. 97 ). (a) The Code distinctly points out that the exceptions only are to • be heard, and numerous decisions have settled the practice. These decisions hold there are but three methods provided for reviewing exceptions. The review may be had by an appeal from the judgment ; by a motion for a new trial upon the exceptions at the general term, under such an order as was made in this case ; and by a motion for a new trial at the circuit or special term (Price v. Keyes, 1 Hun, 177 ; Sheaf v. Utica & B. R. R. R. Co., 2 N. Y. Supreme Ct. [Thomp. & Cook], 388 ; Emmons v. Wheeler, 3 Hun, 545 ; McMicken v. Lawrence, 7 J. & S. 540). (5) A direction of a verdict against a defendant having made a defense, is a ruling by the court that the testimony or evidence produced by such party is insufficient to establish his defense. By such a ruling the effect of the defendant’s evidence is passed upon, and in order to review such a ruling, there must be an exception by pefendant (Requa v. Holmes, 16 N. Y. 201 ). Such a ruling is in fact the charge to the jury, and though consisting of but a single proposition, an exception must be taken in order to review it (Requa v. Holmes, supra), (c) Error cannot be assigned upon any ruling of the court in the progress of a trial, unless by the bill of exceptions it appears that an exception was taken to such ruling (Granger Iron Co. v. Street, 19 Ohio, 300 ).

III. As to the decision of this court at general term in Van Dolsen v. Abendroth: That decision has no application here. The following matters were admitted by the demurrer, and formed the basis of the general term decision, but such matters are not shown at all in this case. 1. That on or about November 23, 1872, voluntary and involuntary proceedings were duly instituted in the United States district court, wherein said firm were duly adjudged bankrupts. As

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has been pointed out, the defendant’s proof has not sustained this allegation which the demurrer admitted. 2. That such proceedings were had in the bankruptcy matter to which plaintiff and defendant were parties that it was duly adjudged and determined that John Griffith and George W. Wundram, the bankrupts in this bankruptcy, were the general partners in the limited partnership of Griffith & Wundram, of which William P. Abendroth was the special partner. As has been urged on this brief, the proof does not show such an adjudication. And the attention of the court is especially directed to the fact that what the respondent relies on as a judgment is only an opinion of a register in bankruptcy. A register in bankruptcy has no authority to adjudicate such a question.

Arnoux, Hitch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel, for defendant.

The principal question presented is very much the same as that passed upon by the general term in Van Dolsen v. Abendroth, 43 N. Y. Superior Ct. 470.

In this latter case, the plaintiff Van Dolsen was a party to the proceedings in bankruptcy, where it was competent to have Abendroth adjudged a general partner, if he had elected to interpose such a claim and establish it; but he did not, and participated in the dividend under the adjudication in bankruptcy, in which Abendroth was held a special jjartner. The court considered that it would be inconsistent with well-settled rules, that this matter, which was, or could have been determined in the proceedings in the United States district court, should be allowed to be litigated here, and overruled the demurrer to the defendant’s answer.

The answer in the present case is similar, but the question comes before the court after a trial, upon exceptions.

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The evidence shows, that the plaintiff’s assignors, Colwell & Brother, were parties to the proceedings in bankruptcy, and received a dividend under the adjudication. They had their opportunity to show that the defendant Abendroth was liable as a general partner. They knew of the advertisement of the limited partnership. If they wished to contest its legality, they had their recourse to the records in the county clerk’s office, and to the bankrupts, and to their books and papers in the hands of the assignee, the defendant, and ah opportunity in the federal court of being heard, and of having an adverse decision reviewed. It was in evidence that at the second general meeting of the creditors, the register held, that it appeared by the evidence that Griffith & Wundram, the bankrupts, were the general partners of the limited partnership of “ Griffith & Wundram, ’ ’ and that the defendant Abendroth was its special partner, and it was also shown, that the report and certificate of the register were approved by the United States district judge. The decretal order of the judge recites that due notice had been given of such second general meeting to all the creditors of the bankrupts, as appeared by the proof thereof, duly filed. In all these bankruptcy proceedings the plaintiff’s assignors were actors, and participated in the results. If these bankruptcy proceedings were irregular, or the decision erroneous, they had then and there an ample opportunity for a rehearing, or a review. But having proceeded thereunder without raising this question, which they could have done, and having gathered all the fruits of that adjudication, they are debarred from raising it here.

There is nothing that appears at the trial of the present case in regard to this question to take it out of the scope of the decision in the corresponding case of Van Dolsen v. Abendroth, above referred to.

At the close of the plaintiff’s case, the defendant

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moved to dismiss the complaint, which the court denied lor the present. At the close of the testimony, the defendant moved to dismiss the complaint. That motion was denied and the defendant excepted.

This motion was substantially a motion to dismiss the complaint, for the reason that the evidence failed to establish a cause of action against the defendant, Abendroth. If the court ought to have granted this motion, to dismiss the complaint, the fact that other reasons or grounds which may not have been tenable were also mentioned, does not sustain an erroneous ruling denying it. Amotion to dismiss, on the ground that no cause of action is proved against the defendant, may present a question vital to the litigation. The law does not contemplate, that where no cause of action is proved, the court should by any informality in the form of the motion to dismiss the complaint, be placed under the necessity of finding that there is one proved, and what it is, and of directing a verdict accordingly.

The court directed a verdict for the plaintiff for $7,051.24, and ordered the exceptions to be heard in the first instance at the general term, but the case does not show that these directions were made upon the motion of either party, or that any exception was taken to the direction for a verdict. This subsequent disposition of the case did not affect the accrued right of the defendant, if there was no cause of action proved against him, and he had moved for a dismissal of the complaint and excepted to the denial of his motion. -

Defendant’s exception should be sustained, and the verdict set aside, and there should be a new trial, with costs to appellant to abide the event.

Sedgwick and Freedman, JJ., concurred.

Cases cited

Day v. Roth 18 N. Y. 448 N.Y. p. 466
Hoxie v. Greene 37 How. Pr. 97 N.Y. Sup. Ct. p. 467