Gomez v. Garr

6 Wend. 583 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The substance of all the special pleas is, that the plaintiff’s interest in, and right of action upon the bills, passed to his assignees under the insolvent act, and that they are the parties who should have brought the suit, and not the plaintiff. The plaintiff contends that his right to sue is established by the award of the arbitrator, and that the defendant is concluded from again raising that question. That the award does decide that the plaintiff was the true and lawful holder of the bills, is not denied ; but it is contended that that question was not embraced in the submission, and that the award therefore was in that respect void.

It is true that the submission does not, in terms, direct the arbitrator to determine to whom the balance, if any, which might be found due from Mr. Garr upon these bills should be paid. But it appears on the face of the submission that it was admitted that Mr. Gomez had no beneficial interest in these bills, and that he acted throughout, in this matter, on the behalf of other persons. The difficulty in relation to the suit in chancery was, that that fact did not appear upon the pleadings and papers in the cause ; and in as much as it did not appear, the question submitted to Mr. Bolton was whether, in judgment of law, the suit was not abated by the general assignment of all his choses in action, as made by Gomez. It will be observed that the submission itself is not in the name of Gomez, but in the name of Henry S. Mackay, attorney and of counsel for, and acting on behalf of the holders and owners of the two acceptances, of the one part, and Gan-, of the other. It was obviously the intention of the parties that the whole matter should be disposed of by the arbitrator. Mackay represented all the persons interested in the bills. Whether the sum which might be found due from Garr should be directed to be paid to Gomez, the holder, or to the beneficial owners of the bills, was a matter of indifference to him, as the holder and owners acted in perfect harmony, and Mackay represented them all. The agreement, under such circumstances, that the arbitrator should determine whether any, and if any, what sum was due from Garr, seems necessarily to imply that he should also decide to whom it was due and was to be paid. I am inclined to think, therefore, that the decision of the arbitrator upon this point was within the submission, and that the defendant is estopped by the award from denying the plaintiff’s right to bring this action, on the ground stated in his special pleas to the first count, and that the demurrer as to the pleas to that count is well taken.

The second and third counts were the common money counts and an account stated. They allege the defendant’s indebtedness to have accrued, and his promise to have been made, on the 31 st July, 1827. The plea to these counts is the same as the special pleas to the first count; that is, that the plaintiff cannot maintain the action, because in October, 1826, he was discharged under the insolvent act, and made an assignment of all his property. Now an assignment made in October, 1826, could not affect a cause of action which accrued, and a promise which was made in July, 1827, nine months afterwards. But if the defenc¡ant corjs¡clers these counts, though general, as being for the same cause of action embraced in the first count, then the reasons which have already been stated in relation to the pleas to that count, are applicable to the plea to these, and on either ground the demurrer is well taken. The plaintiff, however, asks for leave to enter a nolle prosequi upon the common counts, and to take judgment upon the first count only, to which I perceive no legal objection.

It was said by the counsel for the defendant, that the demurrer embraced the plea of the general issue, as well as the special pleas, and thereby admitted the defence. This is a mistake in point of fact. The demurrer is expressly to the said several pleas of the said defendant, by him above pleaded to the said first, second, and third counts. Now the plea of the general issue was to the whole of the declaration, and not to either of the counts by name. There can be no doubt that it was the intention of the pleader to demur only to the special pleas.

It was also said that the award did not conform to the submission, inasmuch as by the submission the defendant was to have until the thirtieth day of July succeeding, to pay whatever balance should be found against him, whereas, by the award, he was simply directed to pay, without any such extension of time. The award not designating the time of payment, that is regulated by the submission. The time of payment was settled by the parties. It was unnecessary for the arbitrator to say any thing about it in his award. He accordingly did not.

The costs were within the submission ; but if not, it would only affect the award pro tanto, and leave the residue to stand.

On the whole, I think the plaintiff is entitled to judgment upon the demurrer to all the special pleas, with leave, however, to him, to enter a nolle prosequi upon the common counts, and take judgment only on the first count, if he thinks it necessary or expedient to do so."