90 N.Y. 110 | NY | 1882
There are two appeals in this case: one from an order of the General Term, reversing the judgment herein and granting a new trial, the other from an order of that court denying the defendant's application for a reargument. Over the latter we have no jurisdiction. Whether more than one argument of a question shall be had, is exclusively for the court in which it is pending to determine.
In the first order we find no error. The plaintiffs are merchants. *114 They brought this action upon a promissory note of $1,000, bearing date October 13, 1877, made by Z. Stern Co., payable three months after date, to the order of the defendant, and indorsed to the plaintiffs, in payment of an indebtedness to them, of about $1,000, for goods theretofore purchased by him. These facts are stated in the complaint. The defendant denied none of them, but pleaded that the note was made for his accommodation, and indorsed to the plaintiffs upon a usurious agreement, whereby they were to give him $941.92 for the note, and a credit on their books for $35.83 more, thus taking to themselves $22.25, the difference between the face of the note and these sums, being $7.10, in addition to legal interest while the note should be running to maturity, and demanded as an affirmative judgment that the complaint be dismissed and that "he recover his costs and disbursements and an allowance of five per cent on the plaintiffs' claim."
It is obvious that this demand by one, who, if the contract was illegal, was himself a party to it, has nothing to commend it to the court, and there was no reason why it should not have been denied under the provision of the Code that "each material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true." (§ 522.) Here the complaint stated a clear cause of action, and under the pleadings the plaintiffs were not required to prove any thing, nor was the defendant at liberty either to deny the existence of the facts constituting the cause of action, or to prove any state of facts inconsistent with such admission. (Tell v. Beyer,
The account was enforceable by action at the time of the transfer of the note, and its effect was to suspend that right until maturity, for until that time the creditor could neither legally commence nor sustain a suit for the original indebtedness. (Putnam v. Lewis, 8 Johns. 389; Fellows v.Prentiss, 3 Denio, 512.) The transaction then in effect was an extension of credit, and this was sufficient, as between the parties, to prevent the defendant from denying the truth of the representation, upon faith in which the forbearance of the creditor, or extension of credit, had been obtained. (Boyd v.Cummings,
We think, therefore, the plaintiffs were entitled to have the jury inquire whether the representation was in fact made, and as the trial court refused their request in that respect, the General Term were right in granting a new trial. As the defendant by his stipulation has made another trial impossible, it is unnecessary to consider the other questions raised.
The appeal from the order denying a reargument should be dismissed, with costs, and the order reversing the judgment and granting a new trial should be affirmed, and judgment absolute in accordance with the stipulation be rendered for the plaintiffs, with costs.
All concur, except MILLER, J., absent.
Judgment accordingly.