Bernheim v. Bloch

45 Misc. 581 | N.Y. App. Term. | 1904

Freedman, P. J.

The defendant having expressly admitted that there was no question of fact involved in the case and consented “that there be no jury and that your Honor may direct a verdict,” the trial justice dispensed with a jury and passed upon all the issues. This the consent “that there be no jury” fully warranted. Defendant’s present claim that the case was submitted on the theory that a verdict should be directed, is, therefore, without merit. But even if the trial justice, instead of making findings and a decision, had made a formal direction of a verdict and judgment had been entered thereon, the result would have been the same inasmuch as the defendant had not reserved leave to make a motion to go to the jury upon any question of fact in case the verdict should he directed against him. Consequently in either aspect of the case the determination of the trial justice as to all questions of fact should he held conclusive on this appeal.

Plaintiffs’ practice in preparing and submitting, at the request of the court, and without notice to the defendant, the finding as signed, was authorized. Baylies Tr. Pr. (2d ed.) 382; Boyd v. Campbell, 12 Misc. Rep. 351. The defendant might have moved for a resettlement, as held in' Boyd v. Campbell, but no such motion was made. His ex parte application for additional findings was properly denied, because at that time no such right existed and hence his exceptions to the refusals to find as requested are untenable.

The only remaining question, therefore, is whether there is evidence in support of the findings, which, briefly stated, are to the effect that the judgment upon which this action was brought, was not affected by the defendant’s discharge in bankruptcy because neither the names of the plaintiffs as creditors,- nor the judgment in question, nor the claim on which it is basecT, was correctly inserted in the schedules which the defendant was required to file in court with his petition to be adjudged a bankrupt. A careful examination of the whole case discloses that there is sufficient evidence upon these points and that there is no evidence that the plaintiffs had either knowledge, or notice of the bankruptcy proceedings. Under these circumstances the final conclusion reached by the trial justice was correct. Columbia Bank v. Birkett, 174 N. Y. 112; Tyrrel v. Hammerstein, 33 Misc. Rep. 506; Sutherland v. Lasher, 41 id. 249, affd. 87 App. Div. 633.

In view of what has already been said it is not necessary to determine with precision whether under the decisions of Dwight v. St. John, 25 N. Y. 203 and Riggs v. Pursell, 74 id. 370; the defendant Bloch is concluded by the denial of his motion to cancel the judgment sued on, no appeal from -the order of denial having been taken. Nor is it necessary to determine whether the defendant Bloch can urge his individual discharge against plaintiffs’ judgment which was recovered against him on a firm debt. The authorities seem to be against his claim in that respect.

The judgment should be affirmed, with costs.

Bischoff and Gildersleeve, JJ., concur.

Judgment affirmed, with costs.