Brett v. First Universalist Society

| N.Y. Sup. Ct. | Nov 4, 1872

By the Court, Leonard, J.

The omission to plead the appointment of a receiver of Barstow, prior to the assignment by him to the plaintiffs, of the demand in suit, upholds the decision of the referee, excluding evidence of the proceedings supplementary to execution and the appointment of a receiver. The ownership of the demands in suit by the receiver should have been affirmatively stated. This evidence cannot be introduced to sustain a" denial that the demand had been assigned to the plaintiffs and that they were the owners. Perhaps evidence tending to show that the assignment by Barstow was without consideration, or that he had made no valid transfer, was admissible under the denial; but not the ownership of the demand by a third party. (Savage v. The Corn Exchange Ins. Co., 4 Bosw. 12; opinion by Woodruff, J. Seeley v. Engell, 17 Barb. 530.) This last case .was reversed by the Court of Appeals, (13 N. Y. 542,) but on a different point, leaving the case as, authority upon this subject, inasmuch as it is not referred to or mentioned as a ground for reversal. I am aware that there is some diversity of opinion, upon this question, but I am inclined to hold the rule now stated, as the better one, in pleading and practice.

It is objected that the referee refused leave to amend the answer so as to admit the evidence so excluded. Five years had elapsed since the receiver was appointed. • The defendant had not, during that time, been called on to pay, and had not sought to discharge its obligation to the receiver, nor to the plaintiffs as the assignees of Barstow. The subject of amendment is given, by the Code, to the referee, with large discretion, and I cannot say that he did not exercise the discretion soundly. It is a technical defence, coming within the. class usually called dilatory pleas, and w.e should not disturb the judgment on this ground.

It was proven, in the case, without objection, that at a meeting of the church, in January, 1865, when Mr. Bar-stow was present, the pastor, Mr. Blanchard, stated that he was authorized hy Mr. Barstow to state to the society that there was a large deficiency in the revenues; that his accounts were not made up, and he could not state -the exact amount, but that if $2300 was raised, he, Barstow, would accept it in full settlement of his accounts against the church; and Mr. Blanchard thensealled upon the society for subsciptions for that amount. This sum was' raised by the society, and paid to Mr. Barstow, within a short time.

[First Department, Generar Term, at New York, November 4, 1872.

This must be held to be a good accord and satisfaction, upon two grounds: • "

1st. The agreement was between Mr. Barstow and the members of th.e society, not otherwise personally liable, who paid that sum for the satisfaction of his demand against the society.

2d. The demand being uncertain as to amount, as Mr. Barstow conceded by admitting that he could not state the amount, at that time, the payment of $2300 on behalf of the defendants, under an agreement that it should be received in satisfaction, operated as a full and final release of his demand.

This defence was not set up in the answer, and the referee refused to find the fact for that reason, as I understand it. The evidence was before him, however, and I think he was bound to.decide the case accordingly. The pleadings must be deemed to have been amended so as to include this evidence.

There must be a reversal of the judgment, and a new trial before the same referee ; with costs to abide the event.

Leonard and Gilbert, Justices.]