Howell v. Dimock

44 N.Y.S. 271 | N.Y. App. Div. | 1897

Bradley, J.:

When the action came on to trial the defendant’s counsel moved for judgment, on what he termed a counterclaim, for want of a reply. The defendant did not allege in his answer any cause of action against the plaintiff, but did allege that the bank, the payee of the note, was authorized, in case of the depreciation of the stock, to realize on it; that the bank negligently failed to sell such stock until it had become nearly worthless, and that thereby a “ a loss of fifty thousand dollars was occasioned to the defendant,” which “ he claims to be set-off and counterclaim against any recovery ” by the plaintiff.

It is essential to a counterclaim that the facts alleged constitute a cause of action in behalf of the defendant, or in a proper case against the plaintiff, or in a proper case against the person whom he represents. (Code Civ. Proc. § 501.)

There is a failure to allege in the answer facts sufficient to constitute either. It is not charged that the bank undertook to sell the pledged securities, or assumed any duty to that effect. The allegation that the payee in the note was authorized to sell the stock did not necessarily require it to do so, nor charge the bank with liability for failing to exercise such authority.

It appeared that the summons and complaint were personally served on the defendant Arthur V. Dimock on August 11, 1890, and that the service on the other defendant was made January 16, 1894. The latter defendant having alleged the Statute of Limita, tions as a bar, moved for a dismissal of the complaint on that ground. The'exception to the denial of his motion was not well taken, as the defendants were joint debtors or contractors. The service upon one of them, within six years after the cause of action accrued, was effectual to defeat the Statute of Limitations as to both defendants. (Code Civ. Proc. § 398.)

The evidence offered by the defendant to prove the course of business in Wall street, or the custom there in regard to the sale and disposition of securities pledged for a loan, with a view to 3’ealizing from them, was properly excluded. The terms of the pledge, expressed in the note, were such as not to permit the bank to sell the stock before the default in payment; and, for the like reason, the exception was not well taken to the exclusion of evidence offered to charge the payee of the note with negligence for not selling the stock before the note became due. Until then the bank had, by the terms of the contract, no authority to sell it. The court expressly limited such ruling to evidence of that character to a date prior to the time before maturity of the note, and advised the counsel that he would be permitted to introduce evidence tending to prove such fact as of a time subsequent to the defendants’ default in payment of the note. This was as far as the court could legitimately be required to go.

There was no question for the jury. The verdict was properly directed for the plaintiff. Hone of the' exceptions were well taken.

As the defendant Arthur Y. Dimock was inadvertently joined in the notice as appellant, the appeal should be dismissed as to him, and as to the other defendant the judgment should be affirmed.

All concurred.

Judgment and order affirmed, with costs as to defendant Anthony W. Dimock; as to defendant Arthur Y. Dimock, appeal dismissed, without costs.