Fake v. Smith, 2 Abb. Ct. App. 76

2 Abb. Ct. App. 76 | NY | 1869

By the Court

Lott, J.

The defendants’ answer shows that they were privy to the consideration of the note set forth in the complaint, and the facts and circumstances under which it was given, and transferred to Isaac W. Fake, the plaintiff’s intestate (by whom this action was commenced, and who is referred to when the plaintiff is herein spoken of), and that after the defense of usury was interposed in an action commenced by him against the makers thereof, he notified each of them by a notice in writing of the commencement of that action, and of such defense, and therewith served each of them with a copy of the summons, complaint and answer therein, and in the notice he also requested and required them to assume the prosecution of the said action, and to prosecute the same to judgment, and that they, or either of them, would be allowed to do so, but that they, and each of them, refused to comply with such request and requirement, or to have anything to do with the prosecution of the action; that they were severally subpoenaed and sworn on the trial of the action, on behalf of the plaintiff, and that they were subsequently served with a copy of the judgment rendered against the plaintiff therein, and with a copy of the report of the referee on which said judgment was entered, and he demanded of them the amount of said note with interest, and the amount of said judgment, and his own costs and disbursements, with a reasonable counsel fee, specifying the several amounts claimed. He afterward, and before the commencement of this action, tendered to the defendants the note in question, and also at the same time demanded the return of the consideration paid therefor, and payment of such judgment, costs, and counsel fees, but they refused to accept said note, or comply with such demand, or any part thereof.

It is further shown by the bill of exceptions that the judgment roll in said action was introduced and read in evidence, from which it .appeared that the judgment was recovered on the note set forth in the complaint in this action; that the defence of usury was interposed, that the issues were duly referred to a referee to hear and decide the same, and that he, after the trial thereof, found in express terms that the said note was usurious and void, as alleged in the answer of the defendants.

It also appeared that before the commencement of this action the plaintiff had paid and satisfied the said judgment so recovered against him, together with the account of the statutory costs that would have been recoverable by him if he had succeeded in that action.

Upon these facts, the defendants moved the court to nonsuit the plaintiff on the ground that he had not shown a cause of action which entitled him to recover. That motion was denied, and then (no proof having been introduced by defendants) the court ruled and decided that the plaintiff was entitled to recover the amount he paid for the note, and interest thereon from the date of the purchase thereof, together with the amount of costs included in the said judgment, and the statutory costs to which he would have been entitled if he had obtained judgment for the note with interest on said sums respectively from the time of payment thereof. A verdict was accordingly rendered for said amount, and judgment entered thereon.

Exceptions were duly taken by the counsel of the defendants to the denial of said motion, and also to such ruling and decision; and the principal question for decision on appeal to this court is presented by these exceptions.

Upon the preceding facts the plaintiff was, within the decision of this court in the case of Delaware Bank v. Jarvis, 20 N. Y. 226, clearly entitled to recover the whole amount for which such judgment was rendered.

The material facts in that case and in this are substantially the same, and the judgment on the merits is conclusive on us.

An exception was taken to the introduction, by the plaintiff, of the judgment roll above mentioned, and to proof of payment of the costs included therein, and of the statutory costs of his attorney, by the plaintiff.

The defendants, under the decision referred to, impliédly Warranted, on the transfer of the note by them, against any legal defense to an action thereon; and having had notice of the defense interposed, and an opportunity to enforce its collection, they were, within the rule referred to by the learned justice delivering the opinion of the supreme court, and the authorities cited by him in support thereof, bound by the judgment.

I can see no ground for the defendants’objection to evidence showing the payment by the plaintiff of the judgment and costs. They constitute the damages which he was entitled to recover, and it' certainly was competent, if not necessary, to prove them.

An etception.was also taken, on behalf of the defendants, to the exclusion of an offer on their behalf to prove, by one of them, the true consideration of the note in question, and that the same was not usurious.

This evidence was properly excluded. They had had full Opportunity to show, in the action brought against the makers, any and everything which would have entitled the plaintiff therein to a recovery. They neglected to avail themselves of it, and the judgment therein, as before stated, is conclusive on them.

It may be proper to add that the defendants’ counsel, in his points, claims that proof given, on the part of the plaintiff, of the amount of his taxable costs in the action against the makers was improper, first, because they had not been taxed by a proper officer, and second, because the items should have been proven or shown to the court, and by the court passed upon as matter of law, and that it was erroneous to allow the Witness to swear to a conclusion of law.

It is a sufficient answer to this position to say that neither of these grounds was stated on the trial. On the plaintiff’s offering “ to prove (by one of his attorneys) the amount of the plaintiff’s. taxable costs in that action, and the payment of the same to him by the plaintiff,” the counsel for the defendants “ objected to such evidence, as being illegal, incompetent, and immaterial.” This objection was to the matter offered in proof, and not to the mode of proving- it. If the latter ground had been stated, it might have been obviated by additional evidence. It is now too late to raise that objection on appeal in this court.

It is also now claimed by the defendants’ counsel that the judgment in the action on the note is not binding on them, because, it being not referable by law, was tried by a referee on an order of reference to him by consent. Such reference was allowable under section 270 of the Code of Procedure; and the counsel admits that " the parties to the action are no doubt bound by it.” This concession is properly made, and is fatal to his objection. The defendants, as well as the parties, for the reasons above referred to, are bound by the judgment.

These views lead us to the conclusion that the judgment should be affirmed, with costs.

Judgment affirmed, with costs.