Foster v. Devlin — 57 N.Y. Super. Ct. 120

Majority

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FREDERICK P. FOSTER, as Executor, &c., Respondent, v. JOHN E. DEVLIN, as Ancillary Administrator, &c., Appellant.

Headnote

Judgment under section 511 of the Code, in case the answer admits a part of plaintiffs claim.

In this case the plaintiff claimed a lien on a draft for his services to the amount of $2, 542.72, and the right to have that lien enforced in equity, demanding judgment for such enforcement. In answer defendant denied the lien and the value of plaintiff’s services, as alleged, stating that, by-agreement, they amounted only "to $579.62, which he had offered and was willing to pay.

The court below, on motion, ordered judgment in favor of plaintiff for the sum of $579.62 and costs, on the assumption that the case was within section 511 of the Code.

Held, that the motion for judgment should have been denied. That a true construction of the answer does not admit that the value of the services was absolutely and unconditionally due or payable to plaintiff. That, on the pleadings and the assumption of the answer, it was not due and payable until plaintiff performed a duty antecedent to his right to receive payment, namely, he (plaintiff) must pay over the draft. If he retained it, the money would not be due. If he received the money and the defendant’s contention that no more had been earned were correct, there would be no lien. By the judgment defendant was deprived of the right to avail himself of the position of the answer, that the defendant "was not bound to pay the value of the services until plaintiff performed his concurrent duty of a delivery of the draft.

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Before Sedgwick, Oh. J., Freedman and Truax, JJ.

Decided June 28, 1889.

Appeal by defendant from a judgment and from the order directing such judgment to be entered.

Marsh, Wilson & Wallis, attorneys, and William G. Wilson, of counsel, for appellant, argued :—

The case is not one of those contemplated by section'511 of the Code. That section provides that where the answer of the defendant expressly or by not denying admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may in its discretion order that the action be severed ; that a judgment be entered for the plaintiff for the part so admitted ; and, if the plaintiff so elects, that the action be continued with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the claim. It will be seen at once that this language is inapplicable to the present situation. The plaintiff’s claim is a claim of a lien and of a right to have that lie'n enforced in equity. The defendant’s answer distinctly denies such claim in toto, and alleges the real transaction between the parties to have been something entirely different. It cannot, therefore, be said that the answer admits a part of the plaintiff’s claim to be just, for it does nothing of the kind ; it merely admits that under circumstances different from those alleged in the complaint the plaintiff would be justly entitled to the payment of a certain sum. But from both the pleadings it is obvious that this different state of circumstances does not yet exist, for the reason that the plaintiff still retains the Treasury draft and refuses to surrender it upon the terms specified in the answer, and that, therefore, under the admissions of the answer, the condition precedent,

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that is, the collection of the money upon the performance of which alone any right in the plaintiff is admitted, has not yet been performed. It would certainly be a remarkable state of things if the plaintiff were • entitled to retain in his own possession the draft which represented the whole result of his alleged services—to prevent the defendant from receiving the same or receiving the moneys payable under it—to thus at the final stage of the matter refuse to make collection possible ; to take advantage of his position to endeavor to extort from the defendant a sum largely in excess of what was rightfully payable to the plaintiff; and then, upon the defendant’s admission of the true contract and true relations between the parties, to permit the plaintiff to retain his unconscionable advantage to still deprive defendant of all benefit and yet to obtain summary judgment upon the contract alleged by defendant but repudiated by plaintiff.

The contract between the parties as set up in the answer was that the plaintiff should rehder all proper and necessary services in and about the collection of the claim ; and it is upon such collection only that any indebtedness from defendant to plaintiff arises ; certainly, so far as the defendant is concerned, the amount of the treasury draft cannot be deemed to be collected, for defendant derives no benefit whatever from it. so long as it remains in possession of the plaintiff. It is simply locked up in a form in which it is of no present avail to either party, and can be of no benefit until its possession and control are surrendered to the defendant, to whose order it is drawn. It is manifestly improper to call this performance a severance. The original cause of action as asserted was an equitable one to have a lien declared and enforced. The judgment which has been entered is not in any sense for a part of that cause of

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action, but is a common law judgment against the defendant personally for a certain number of dollars. It might be that the plaintiff upon a trial, being defeated in his claim of specific lien, might, by establishing such a contract as the defendant admits, obtain a common law judgment for the amount so established. But he could only do this by abandoning all claim to equitable relief and by limiting his common law claim to the amount so established. And what other or greater right can he have upon his own motion made upon the pleadings without waiving or abandoning in any respect, either in nature or in amount, his original claim ? The confusion which has arisen in this case we think is due to a failure to discriminate between the two different senses in which the expression “ the plaintiff’s claim ” may be used. When we speak of the plaintiff’s claim, referring simply to the amount of money which he claims, we use the expression in one sense, but not that which is given to it in section 511 of the Code. That section evidently refers to the plaintiff’s claim as it is asserted in the action, or, in other words, the relief to which the plaintiff claims himself to be entitled, and thus asserts in his complaint. In the complaint in the present case the “ claim ” is that of a specific lien upon a specific piece of property for an alleged indebtedness. But the admission of a smaller indebtedness on different terms and distinct and apart from any such lien is not an admission that a part of such claim is just, because’it is no admission-of the contract itself which forms the basis of the claim which the plaintiff has chosen to assert. And until that contract is admitted, a simple admission of indebtedness, present or contingent, from defendant to plaintiff is not in any sense an admission of a part of the plaintiff’s claim.

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Frederick P. Foster, in person, for respondent, argued :

I. As the complaint alleges that there is due plaintiff by defendant $2,542.70 for services rendered, which is a legal cause of action, and the answer admits that there is due “the sum of $579.62, the amount of said plaintiff’s agreed compensation, * * which * * defendant has repeatedly offered and has been and is ready and willing to pay to the plaintiff,” the action was rightly severed and judgment directed for the amount admitted to be due. (1) Code, § 511 : “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court * * may * * order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted.” This section means that where an answer admits facts which give plaintiff a different cause of action against defendant from that stated in his complaint, he is entitled, nevertheless, to judgment thereon, although the admission is of a cause of action not stated in the complaint. In Stedeker v. Bernard, 102 N. Y. 327 , the plaintiff sued defendants jointly, as members of the firm of H. 0. Bernard & Co., to recover the amount of a check drawn by them in the firm name, which had been dishonored. The answer alleged that the check was II. 0. Bernard’s individual transaction, and denied any joint liability. On a motion for judgment on this answer the court gave an individual judgment against H. 0. Bernard. Held, that although no such cause of action was stated in the complaint, the plaintiff was entitled to a personal judgment against H. 0. Bernard, on the admission in his answer, and that it was rightly granted on a ruotion on the pleadings before trial. (2) The admission that $579.62 is due, is unqualified. To constitute a qualification, some fact must be stated, showing

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that plaintiff can by no possibility recover the amount which has been due, and on which, if true, his complaint must be dismissed. No such fact is stated in the answer. In Marsh v. West Mfg. Co., 46 Supr. (J. & S.), 8, an answer admitted that a sum of money was due by defendant, and alleged that a third party had attached the indebtedness in .an action against plaintiff, that such action had since been pending, and that the defendant had never been released from its obligations by reason of such levy. Held, that an order denying a motion for leave to enter judgment for the amount admitted to be due was erroneous, and should be reversed, as it did not appear that the attachment and levy were still in force, and that the admission was, therefore, unqualified.

II. As defendant’s answer formally and explicitly admits that he owes the plaintiff “ the sum of $579.62 * which * defendant has repeatedly offered and has been and is ready and willing to pay to the plaintiff,” defendant cannot claim on appeal that a judgment should not be entered against him for the amount which he admits is due. “ When the defendant’s pleading formally and explicitly admits that which establishes the plaintiff’s rights, he will not be suffered to deny its existence of to prove any state of facts inconsistent with that' admission.” Schreyer v. Mayor, 39 Supr. (J. & S.). 1; Paige v. Willet, 38 N. Y. 28 , 31; Tell v. Beyer, 38 Ib. 161; Fleischmann v. Stern, 90 Ib. 110, 114, 115; Prentice v. Jansen, 79 Ib. 480, 487; Ross-Lewin v. Redfield, 68 Ib. 627; Dunham v. Cudlipp, 94 Ib. 129, 130, 134; Holmes v. Wood, 88 Ib. 651; Getty v. Hamlin, 46 Hun, 1 ; Trimmer v. Hiscock, 27 Ib. 364, 365; Ballou v. Parsons, 11 Ib. 602.

III. It was not necessary to specifically demand a money judgment in the prayer for relief, as the facts constituted a legal cause of action for services

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rendered, for which a money judgment was proper. In any event 'the prayer for general relief is sufficiently broad to include a money judgment; as the only cause of action set out is a legal one. Where a complaint states facts showing a legal cause of action and asks equitable relief, a money judgment for damages will be granted. Post v. R. R. Co., 50 Hun, 301 ; Fairchild v. Lynch, 42 Supr. (J. & S.) 267; Redfield v. Frear, 9 Abb. N. S. 449, 452; Williams v . Slote, 70 N. Y 601 , 602; Marquat v. Marquat, 12 Ib. 336. If, however, the action is an equitable one, the court will settle the entire controversy between the parties and adopt its relief to the exigencies of the case. As all the relief needed is a judgment for the amount admitted by the answer to be due, plaintiff will be given a personal judgment therefor. Post v. West Shore R. R. Co., 50 Hun, 305 ; Murtha v. Curley, 90 N. Y, 372 ; Henderson v. N. Y. C. R. R. Co., 78 Ib. 423; Mad. Ave. Bap. Ch. v. Oliver, 73 Ib. 95; Wells v. Tates, 44 Ib. 525.

The action was begun by the present plaintiff’s testator. The complaint alleged, that the plaintiff was retained by the defendant to prosecute a claim for $22,067.45, in the court of the commissioners of the Alabama Claims, the plaintiff being an attorney of that court ; that the plaintiff, as attorney, recovered a judgment in that court, in favor of the defendants, in the sum of $16.453.40 ; that in part payment of the judgment the plaintiff obtained-a draft on the treasury of the United States for $5,796 ; that the draft was sent to the plaintiff to protect his lien for services and disbursements, which were reasonably worth $2,542.70.

The allegations as to services were, if taken by themselves, sufficient to enable the plaintiff to maintain upon sufficient proof a recovery for the

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value of the services in the form of a money judgment.

The relief asked was a judgment enforcing the plaintiff’s lien upon the draft; that a receiver be appointed, and that defendant be directed to endorse the draft, &c.

The answer admitted the plaintiff’s employment, but denied the value of the services, as alleged in the complaint, or that the value was more than $579.62, “ which sum said defendant has repeatedly offered, and has been and is ready and willing to pay to the plaintiff.” The answer further alleged that plaintiff received for account of defendant, the draft, “ and that said plaintiff has ever since refused to surrender the same to said defendant, unless upon condition that the defendant would pay to him a sum largely in excess of the value of his services and disbursements, and largely in excess of the amount of his agreed compensation.”

The plaintiff made a motion for judgment for the amount of the value of the services, as admitted by the answer, and that the action be severed, if plaintiff so elect, with liberty to proceed to enforce the remainder of the claim: the motion was made under section 511, Code Civil Procedure. “Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed, that a judgment be entered for the plaintiff for the part so admitted, &c.”

I am of opinion, that a true construction of the answer did not show that the answer admitted that the sum which was alleged to be the value of the services was absolutely and unconditionally due to the plaintiff, or unconditionally payable to him. On the pleadings, and on the assumption of the answer, it was not due and payable. It would be payable,

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if, at the time the amount was tendered, the plaintiff would perform a duty antecedent to his right to receive the tender, that is, pay over the draft. If he retained the draft, the money would not be due; or, if he received the money, and the defendant’s contention that no more had been earned was correct, there would be no lien. So that, if the fact is that the judgment represents the whole value of the services, it deprives the defendant of a right to avail himself of the position of the answer, and which he has at least a right to have tried, that the defendant is not bound to pay the value of the services until the plaintiff has performed his concurrent duty of delivering the draft upon payment for his services.

The motion should have been denied.

Judgment and order reversed, with costs.

Fbeedman and Tbuax, JJ., concurred.

Cases cited

Stedeker v. Bernard 102 N. Y. 327 N.Y. 1886-04-30 p. 124
Paige v. Willet 38 N. Y. 28 N.Y. at 31 p. 125
Williams v. Slote 70 N. Y 601 N.Y. 1877-06-12 at 602 p. 126