Casey v. Leslie

12 A.D. 34 | N.Y. App. Div. | 1896

Adams, J.

One of the propositions to which the attention of this court was directed upon the argument of the defendant’s motion was that the precise question sought to.be litigated in this action was determined by the New Jersey Court of Chancery in the proceedings had in that court, and that consequently it is now res adjndioata.

This suggestion is one which would certainly merit and receive careful consideration at our hands, did we regard the issue which it presented as one which it. can be fairly said was^ litigated and disposed of at the Trial Term, for it' is undoubtedly true that if the plaintiff has, as a matter of fact, submitted his' person and the same rights for which he is now contending to the jurisdiction'"of a competent' court in a foreign State, he is concluded by the determination of that tribunal, and cannot retry the same questions in this. State. (N. Y. & N. J. Tel. Co. v. M. T. & T. Co., 81 Hun, 453; Dobson v. Pearce, 12 N. Y. 156.)

But, as just" intimated, the record does not disclose, so far as we are able to disco veiy that this proposition was pressed with very-much ardor upon the trial, although it did furnish one of the grounds upon which the defendant moved to dismiss the plaintiff’s complaint. The case seems to have been disposed of, however, upon an entirely different theory, and one which was apparently adopted after issue had been joined. We prefer, therefore, to consider this motion from another point of view than the one just adverted to.

The plaintiff in his complaint alleges for his cause of action the sale by the defendant of the property of the company of which he was the receiver, upon terms and conditions substantially the same as those to which reference has already been made ; admits his inability to comply with such terms by paying the entire purchase price in money, and then claims that the Hew Jersey Court .of Chancery acquired no jurisdiction over the defendant, as such receiver, in relation to any sale made in this State; that consequently the terms and conditions announced at the sale were made upon the individual responsibility of the defendant, and that it, therefore, became liis duty to perfect the sale by turning over the property to the plaintiff upon a payment being made by him of a sum equal to the entire indebtedness of the corporation, which, it was claimed, did not then exceed $9.,000.

After issue was joined by the service- of au answer a motion was made by the defendant to change the place of trial from the gounty of Monroe to the city and county of Hew York. This motion was denied upon certain conditions, which were subsequently embraced in a written stipulation, of which the following is a copy, viz.:

“Pursuant to the order dated March 4tli, 1895, and entered March 21st, 1895, in above-entitled cause, it is hereby stipulated that upon the sale in question no representations were made by the receiver, except such as appear in the written or printed notice of the conditions of sale.

“ Dated March ‘¡¿6th, 1896.

“ JOHH YAH YOOBHIS & SOHS,

“ To P. M. Brown, “ Plaintiff's Attorneys.

“ Defendant's Attorney."

The language of this stipulation is quite free from ambiguity,, and its import is not difficult of apprehension, for it, in express terms, declares that upon the sale in question no representations were made by the receiver- other than those which • appear in the written or printed notice of the conditions of sale, and yet' it appears that upon the trial the plaintiff, instead of being confined to the limitations defined by his stipulation, was permitted, over the objection of the defendant’s counsel, to detail certain other terms and conditions which, he says, were made, not at the sale, but some seven days prior thereto,, on the corner of Fulton street and Broadway, in the city of New York; and the- terms and conditions thus detailed were evidently relied upon by him as establishing an absolute agreement upon the part of the defendant to accept from the plaintiff, if he purchased the property in question, a sum of money which should be sufficient in amount to pay the debts of the corporation and the expenses of the receiver, and to permit the balance of his bid to be credited to him and the other stockholders.

It will be seen, therefore, that by admitting this evidence, not only was a different issue presented from the one tendered by the complaint, bat it also appears that the jury were instructed by the learned trial court that the only question in the case requiring their consideration was whether or not the agreement testified to by the plaintiff was; in fact, made by the defendant.

We are at a loss to understand, and the record furnishes no satisfactory explanation of, the precise theory upon which evidence of any other conditions than those imposed at the sale was admitted. It is now insisted that this stipulation was not read in evidence, but it appears in the printed appeal book as a. part of the record, and it was referred to upon the trial and furnished the ground of “the defendant’s objection to the evidence we have been considering. . It is quite .possible that its full force and scope escaped the attention of the trial court, or it may have been supposed that the terms and conditions testified to by the. plaintiff, as having been furnished to him by the defendant in the street, were not within, and covered by, the stipulation, because not made upon' the sale,, but, as we have. seen, unless made at the sale, they were not competent for any purpose, because ■ no other terms and conditions are -alleged in the complaint.

It necessarily follows that, until revoked by some competent authority, the stipulation was conclusive upon the party makiug it, and that a violation of its terms should not have been permitted. (People v. Rathbun, 21 Wend. 509, 543; Davies v. Burton, 4 Carr. & Payne, 166; Heming v. English, 6 id. 542.) It was doubtless within the power of the court to relieve the plaintiff from its condi- . tions, if good reason could 'have been shown therefor (Malin v. Kinney, 1 Caines, 117; Barry v. M. L. Ins. Co., 53 N. Y. 536), but there is nothing to indicate that any application for such relief was ever addressed to the court, or that the plaintiff has attempted to escape from its legitimate effect in any other way than by simply ignoring it.

We conclude, therefore, that the evidence which was thus admitted over the defendant’s objection, was either irrelevant to the issue, or else that' its admission was a violation of the terms of the plaintiff’s stipulation. In either case the exception to its reception presents error which seems to require a new trial.

The defendant’s exceptions should, therefore," be sustained, and a. . new trial granted, with costs to abide the event.

All concurred.

Defendant’s exceptions sustained and a new trial ordered, with costs.to abide the event. .