Derham v. Lee — 47 N.Y. Super. Ct. 174

Majority

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SARAH DERHAM, as Admr’x, &c., Respondent, v. JOHN LEE, Appellant, and JOHN P. SUNDERLAND, Respondent.

Headnote

Judgment against co-defendant—when ordered.—Irregularities—cannot be taken advantage of on appeal.—Jury trial—waiver of.— Evidence—books of foreign corporations, when ad missible.— Code Civil Procedure—sections 507, 531, 939, 930, 931, and 1,304.

Where, in an action to recover for services, &c., an order of revivor was entered directing the prosecution thereof by the administratrix of the deceased plaintiff, and also directing that on’e who had purchased the claim pendente lite, be made a party defendant, and that after joinder of issue upon the supplemental pleadings, the trial proceed before the referee theretofore appointed by consent, no appeal from such order having been taken, and the trial having proceeded without objection, and the merits of the controversy determined, no question of irregularity can be heard for the first time on appeal from the judgment, e. g., whether the referee could regularly render a decision- in favor of the assignee of the claim against his co-defendant; nor can the original defendant’s right to a trial of the issues by jury be asserted for the first time on such appeal.

Under sections 531 and 1,304 of the Code, the referee had power to grant affirmative relief to such assignee against his co-defendant.

Under sections 939, 930 and 981 of the Code (the notice therein required having been given), a duly verified copy of defendant’s account in the ledger of a foreign corporation,'is competent evidence to show the amount of work done by defendant for such corporation, the action being for the recovery of commissions on the amount which defendant was entitled to recover for such work; but it seems that such record would not be competent evidence, in favor of the foreign corporation, if the issue were between it and the parties who had rendered the services.

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Before Speir and Freedman, JJ.

Decided February 7, 1881.

Appeal by defendant, John Lee, from a judgment entered against him on the report of a referee, in favor of the defendant, John P. Sunderland, as the assignee of the claim in suit.

The facts are fully stated in the opinion.

Jones, Roosevelt & Carley, attorneys, and Charles Jones, of counsel, for appellant, urged:

I. Plaintiff proved that she was administratrix of the former plaintiff, Michael W. Derham, and that the claim in suit had been transferred by Michael W. Derham on December 4, 1874, to John P. Sunderland. The defendant, John Lee, asked for the dismissal of the action, which motion was refused, and he excepted, (a) This being a strict common law action, containing no equitable claims in favor of any one, the only judgment the court could render was one in favor of the plaintiff for the amount due to her, or in favor of the defendant, dismissing the complaint. Section 1,204 (274 of old Code) contains the only provision of the Code which furnishes even a suggestion on which an argument can be made in favor of a judgment in favor of one defendant, and against the other, in a common law action. That section has been repeatedly passed on by the courts, and the construction given to it has been that it is intended to apply to such actions as foreclosure, partition, and the like, where the parties are interested in the thing in issue, and to authorize affirmative relief in any action to the defendant against the plaintiff (Wells v. Smith, 7 Abb. 261 ; Tracy v. N. Y. Steam Faucet Co., 1 E. D. S. 349; Stephens v. Hall, 2 Rob. 674 ; Livingston v. Mildrum, 19 N. Y. 440 ; Mechanic’s, &c., Inst. v. Roberts, 1 Abb. 381 ; Norbury v. Seely, 4 How. 24 ; People v. Albany, &c. R. R. Co., 5

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Lans. 25 ). But even under that section the defendant claiming relief was bound to prepare some paper in the form of a statement of a cause of action, or a pleading setting forth his claim against his co-defendant, and serve the same on his co-defendant (Decker v. Judson, 16 N. Y. 439 ). In courts of equity, formerly, when such relief was granted by and against defendants, it could only be on pleadings and proof (Jones v. Grant, 10 Paige, 348 ; Elliot v. Pell, 1 Id. 263). In the present case there is nothing to show the service of any paper or pleading by Sunderland upon defendant Lee. Section 521 of Code does not help the claim that a decision and judgment can be given in favor of Sunder-land against defendant Lee. It does nothing but provide for the service of a copy of an answer in cases “ where” (by some other provisions of the law) “ the j udgment may determine the ultimate rights of two or more defendants as between themselves.” It applies simply to those equity cases to which reference has been made. Not only does it not appear that the answer of Sunderland was served on defendant Lee “ ten days before the trial,” as required by section 521, but it appears conclusively that it could not have been so served, for it was not made till October 5, 1878, while the trial was commenced on March 18, 1875. (5) The only matters referred to the referee, or which he had before him, or could consider, were the issues between the plaintiff and defendant Lee. This case is not referable except by consent. It is a common law action, and does not involve the examination of a long account, and, therefore, the court has no power to order a. reference. And this action was referred by consent. As all or any of the issues in an action can be referred by consent, the consent to. refer determines what has been referred. ■ The consent here was made February 26, 1875, when the only parties to the action were Micháel W. Derham and John Lee, and was that the

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action and the issues existing February 26,1876, be referred ; and the order was made March 3,1875, on that consent. Doubtless, under such a consent, if a party dies, the court has a right to revive the action in the name of that party’s successor in interest, and when the action is so revived the referee can go on and try the issues referred ; but the court has not a right to import new issues into the action, nor to say, that because a defendant has waived a jury trial on certain■ issues, he has waived it on every possible issue. If the defendant Sunderland had any claims against Lee of a common law nature, he was. bound to bring Lee into court, and the court was bound to give Lee a trial by jury. Besides, the order which allowed Sunderland to be made' a defendant, did not direct that any new issues should be brought before the referee, or be tried by him, nor did it in' any manner direct or authorize Sunderland to try out any claim he might have against Lee before the referee, (c) The J. P. Sunderland mentioned in the order of February 25, 1878, could not have been made a defendant for the purpose of trying out any questions between him and Lee, the defendant, because the court had no power to make him a defendant for that purpose, under sections 122 of the old Code, and 452 of the new Code. As to section 122 (old Code), see Finck v. Allen (36 Super. Ct. 350); Newman v. Marvin ( 12 Hun, 236 ) ; Webster v. Bond ( 9 Hun, 437 ) ; section 452 of the present Code takes the place of section 122, and there is no change in that part of the section, “ but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in.” So the decisions cited apply to that part of section 452. In People v. Albany & V. R. R. Co. ( 15 Hun, 126 ), the court says, the views expressed in Webster v. Bond (supra), in regard to the application of section 122 of the old Code, should apply

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to section 453 of the new. The change in the language ~ which has been made in section 452 is found in the second sentence, “and where a person not a party to the action has an interest in the subject thereof, or in real property,” &c. Section 122 of the old Code read, “ And when, in an action for the recovery of real or personal property, a person not a party,” &c. In either case such a person, on application, may be made a party. Section 452 may be broader than section 122, but the person must still have an interest in the subject thereof, and he must be made a party on his application to the court. Neither of those elements exist in this case. The present case is a strict common law action for recovering the value of certain services. The only party who, by any possibility, could bring a bill of interpleader, is Lee, and he simply insists that he does not owe any one, not that he owes a debt and is doubtful as to the payee. Sunderland claims that he owns the claim of plaintiff ; if he does, then he can sue defendant Lee. "He is not in the least a necessary party to the settlement of the litigation between plaintiff and Lee. If Sunderland’s theory is correct, then . the plaintiff has not such an interest as would enable her to sustain the action. A complete determination of the controversy between Derham and Lee could be had without the presence of Sunderland. Sunderland has no interest in the “subject” of the action between Derham and Lee, nor is the present action one in which he could have such interest. The section plainly refers to an action when specific personal property is involved. And above all Sunderland has made no application to the court to be made a party, without which he could not be made a party (§ 452 of present Code). He was made a party (if at all) on a motion to revive the action, (d) The provision of the Code as to judgment is found in section 1204, which is a repetition of section 274 of the old Code. Under section 274 the de

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fendants can have relief against each other only in a case in which they have appeared and answered in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and it must be based upon the facts involved in and brought out by the litigation and investigation of that claim (Kay v. Whittaker, 44 N. Y. 565 ; Fink v. Alien, 86 Super. Ct. 350).

"if. The counsel on the trial relied upon sections 929, 930, 931 of the Code as changing the rule then existing, in regard to entries upon books of account as evidence. JNo such effect was intended or can be given to these provisions. Their only object was to enable parties to read, in evidence, the contents of such books of foreign corporations, when admissible, not to make them admissible absolutely. If there had been any intention to change the rules of evidence, the provision would have been made applicable to all corporations, domestic as well as foreign. The difficulty was in proving, by commission, the contents of books, and this mode was devised to meet the difficulty. Besides, the book or books may be used to prove “an act or' transaction” of a foreign corporation. This may well be to prove user or any other act or deed, but not to make entries of Its dealings with other persons evidence against such person. Suppose there are entries of money paid, can it be supposed for a moment that those entries are admissible of themselves from the fact, when such entries in the books of an individual or a domestic corporation are inadmissible? This would be in contravention of the universal rule that declarations, written or verbal, of a party are not admissible in favor of the party making them.

P. <fe D. Mitchell, for respondent Sunderland.

This action was commenced June 7, 1872, by Michael W. Derham, as assignee of William B. Jackson, to recover for services

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rendered by Jackson to the firm of Lee & Dolan, of which the defendant Lee is the surviving partner. J udgment was entered by default, and on December 4, 1874, the said j ndgment was duly assigned to J ohn P. Sunderland. Subsequently Lee had the default opened and put in an answer, which was a general denial. The issues were referred by consent to a referee to hear and determine the same. During the trial the plaintiff died, and the proceedings became suspended in consequence thereof. On February 25, 1878, an order was made and entered reviving the action, and directing that it be prosecuted before the referee by Sarah Derham, as administratrix, &c., of Michael W. Derham, deceased ; that she make and serve a supplemental complaint; and that John P. Sunderland be made a party defendant. A supplemental complaint was accordingly made and served, based upon the original cause of action. Lee again answered by a general denial. Sunderland, by his answer, admitted the allegations of the complaint, but claimed to be entitled to judgment thereon against Lee, as the real owner of the claim. The trial of the action then proceeded again. The referee found Lee liable upon the cause of action set forth in the complaint, and that Sunderland, as assignee, was entitled to judgment thereon against his co-defendant Lee, and judgment was entered accordingly, from which Lee appealed.-

The appellant insists that upon the facts stated, the only decision which the referee could give, and the only judgment which could be directed or entered, was one dismissing the complaint. This objection is not well taken. The order reviving the action and directing Sunderland to be brought in as a party defendant, and that after the joinder of issue upon the supplemental pleadings, the trial proceed before the referee, theretofore appointed by consent, not having been appealed from, and the trial having proceeded without

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objection until the merits of the whole controversy were determined, no question of irregularity can be heard on appeal for the first time. Questions of regularity and practice should be raised by motion. For the same reasons Lee’s present claim to a right of trial by jury cannot be listened to, because not made before or at the trial. The only question left, therefore, upon this branch of the case, is one of power, and upon that sections 521 and 1,204 of the Code of Civil Procedure are a sufficient warrant for the decision and judgment. These sections are not to be limited by mere construction to actions of foreclosure, partition, and similar actions of a purely equitable character, for the great feature of that Code is, as it was of the prior Code, that but a single form of action is provided for the enforcement of all private rights, and that a defendant may set forth, in his answer, as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. The former requirement that such defenses or counterclaims must not be inconsistent with each other, was stricken from section 507 by the amendment of 1879. So may a defendant claim affirmative relief against a co-defendant, where, by the judgment, their ultimate rights, as between themselves, may be determined. Of course the Code prescribes certain limitations within which these rights must be exercised, but among them I can find none which would justify the conclusion that the referee exceeded his power under the circumstances. Nor is there anything in the facts themselves which constitutes a bar to a recovery by Sunderland against Lee. Sunderland became the real owner of the claim after the commencement of the action, and it was perfectly consistent for him to assert, in his answer^ his rights under the cause of action set forth in the complaint, both against the plaintiff and the defendant Lee.

The appellant also insists that the complaint should

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have been dismissed for want of sufficient proof, and that the report of the referee is against the weight of the evidence. After a careful examination of the whole case, I have come to the conclusion that the appellant’ s exceptions upon these points are untenable. There was sufficient evidence, if no error was committed in its reception, to sustain the referee’s findings and judgment, and I fully concur in the reasons assigned by the referee in his opinion for his conclusions.

The questions remaining to be considered relate to the admissibility of evidence. Upon this branch of the case it is claimed that the referee erred in admitting in evidence the copy of an account of Lee & Dolan as it appeared in the ledger of the New Haven, Middletown & Willimantic It. R. Co. The claim in suit was for a commission of William B. Jackson, in negotiating a contract between Fielder, Spencer & Co. and Lee & Dolan. The commission, as found by the referee, was two per cent, on the amount of moneys which Lee & Dolan should receive, or be entitled to, on said contract, and the copy of the account was offered to prove the amount of work done by Lee & Dolan on the road, for which they received credit. The exhibit was proved to be a copy of the account of Lee & Dolan for work done by them on the road, as it appears in the ledger of the company. The counsel for the appellant, .at the trial, waived any objection for want of proper verification and for not having received proper notice ■of the intention of the adverse party to use such evidence on the trial, as prescribed by sections 930 and :931 of the Code, but objected to it on the ground that it was immaterial and incompetent, for the reason that .there was no proof when or by whom the entries were made or that they were correctly made. The objection was overruled and exception taken. The evidence had an important bearing upon the issues to be determined, and hence was not immaterial. Upon the question of

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competency, the objection, in the absence of the preliminary proof insisted upon, would be well taken, if the issue had been between the railroad company and Lee & Dolan, and the company had offered the copy, or even the ledger itself, as evidence in its favor. In such event the case would have fallen within the principles laid down in Bank of Monroe v. Culver ( 2 Hill, 531 ); Brewster v. Doane (2 Id. 537 ); Burke v. Wolfe (38 Super. Ct. 263), and Ocean Nat. Bank v. Carll ( 55 N. Y. 440 ). But the controversy was between third parties, and the railroad company having been shown to be a foreign corporation, the case fell within the provisions of sections 929, 930 and 931 of the Code, by which, in such a case, the books oí a foreign corporation, or a copy thereof, or a copy of an entry therein, verified in a certain way, are made presumptive evidence for the purpose of proving an act or transaction of the corporation. The legislative intent expressed in these provisions is, that in case of the production of an original book, the contents of the book shall be received as presumptive evidence, without preliminary proof of correctness ; but that if the original book is not produced, a copy thereof or a copy of an entry therein may be admitted with the like effect, provided it is verified in a certain way and a certain notice is given. Any objection for want of proper verification or proper notice having been waived, the copy of the account was properly received as presumptive evidence of the amount of work done by Lee & Dolan for the company, and for which they had received credit, and the burden of establishing a contrary or different state of facts then rested with the appellant.

There were other objections to the admission of testimony, but they are clearly untenable, and not of sufficient importance to be specially noticed.

The judgment should be affirmed, with costs.

Speir, J., concurred.

Cases cited

Stephens v. Hall 2 Rob. 674 N.Y. Super. Ct. p. 175
Livingston v. Mildrum 19 N. Y. 440 N.Y. p. 175
Decker v. Judson 16 N. Y. 439 N.Y. p. 176
Kay v. Whittaker 44 N. Y. 565 N.Y. Comm'n App. 1871-09-12 p. 179
Ocean National Bank v. Carll 55 N. Y. 440 N.Y. 1874-01-20 p. 183