111 N.Y.S. 993 | N.Y. App. Div. | 1908
Lead Opinion
This action is brought to recover of the defendants the sum of $370,000, alleged to have been paid out by the plaintiff, at their special instance and request, in the purchase, of lands for them in the State of Ohio, in the latter part of the year 1902 and the first half of 1903, and plaintiff seeks to recover $90,000 in addition thereto for moneys paid out by him at the special instance and request of the defendants in examining, prospecting and-drilling the lands so purchased for coal, and for commissions for his services, aggregating the sum of $460,000, for which he demands judgment, together with interest thereon from the 1st day of January, 1903, besides costs. .
It appeared upon the trial that the defendants were constituted the managers of a syndicate known as “ Little Kanawha Syndicate,” to which others, including plaintiff, were subscribers. The syndicate agreement was dated the 2d day of December, 1901, and by virtue of its provisions the subscribers became such, as of that date. The object of the syndicate, as stated in the agreement, was to purchase a line of railroad extending from Parkersburg,- W. Ya., up the Little Kanawha river, about thirty miles, known as the Little Kan
At the close of the plaintiff’s case, on motion of counsel for Gould and Guy, the court dismissed the complaint as to them, but denied the motion to dismiss it as to the appellant. It is doubtful whether the recovery could be sustained on the merits, on the complaint and evidence. The complaint shows that the lands were purchased at the request of the defendants and that the defendants promised and agreed to reimburse the plaintiff therefor. If there be any evidence to sustain that theory, the verdict in favor of the plaintiff thereon is against the weight of the evidence, for certainly the preponderance of the evidence shows that the plaintiff purchased the lands, investing his own. funds therein, and made the disbursements and rendered his services upon the express understanding that he was to be reimbursed therefor, not by the appellant, but by the syndicate, and there is no allegation or proof, that the appellant was not authorized by the syndicate to make the arrangement which was made with the plaintiff, nor is there any allegation that the appellant failed to make an assessment or take the necessary steps after demand, to obtain the funds from the syndicate' to reimburse the plaintiff. It would be our duty, therefore, to set aside the verdict as against the weight of evidence, for clearly appellant was not to be liable in the first instance without proof of neglect to carry out his' agreement to levy an assessment on the syndicate or of want of authority to represent the members thereof who were known to plaintiff; but if this were not so, there are errors which require a new trial.
It appears that the plaintiff brought another action against the same defendants, to recover upon the same cause of action, but upon a different theory. The material facts being the same a recovery in the other action if not warranted on the theory chimed could have been had on the theory here asserted if they gave rise to individual liability on any theory. (See Brackett v. Griswold, 112 N. Y. 454.) In the complaint in the other action he predicates their liability upon the ground that they were acting as managers of the syndicate, but the items for which recovery was sought are
When this ■ action was tried counsel for the plaintiff discovered that the complaint erroneously alleged that the plaintiff purchased all the lands in the latter part of the year 1902, whereas some of the lands were purchased during the fore part of 1903. Counsel for the plaintiff during the presentation of his case, requested leave of the court to amend this part of the pleading so as to read as follows: “ That the plaintiff, in pursuance of said agreement, during the latter part óf the year 1902, and the first half of 1903, purchased, for the said defendants the eighteen thousand acres of land.” Counsel for the defendants objected unless the court required the pleading to be formally amended and served, giving his client leave to answer and plead that in an action subsequently brought by the plaintiff against these defendants, on identically the same facts and cause of action, the plaintiff had recovered a judgment which had been duly entered. During the discussion of this matter between the court ''and counsel, the court said: “ It was brought to my attention before that a motion to that, effect was pending before Special Term* but that has not been decided.” Counsel for defendants informed the court that that was true, but that it.did not affect the authority of the trial court to allow the answer to be thus amended. The court expressed an intention to limit the defendants to answering the new matter which plaintiff desired to plead. Thereupon counsel for the defendants stated that he excepted to the court’s refusal to permit him to serve it, whereupon the court said: “You can state it to me; it contains a plea of a former judgment between the same parties Í ” Counsel for defendants answered the interrogation of the court in the affirmative and stated that the amended .answer contained a general denial and
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingeaham and Houghton, JJ., concurred; Scott, J., concurred in result.
Concurrence Opinion
The plaintiff was permitted to amend his complaint at the trial, and thereupon the defendant Eamsey had an absolute right, under the statute, to interpose answer thereto and set up such facts as he might be advised constituted a defense, whether they occurred prior or subsequent to the commencement of the action. When the court refused to allow him to plead the recovery of the judgment in the other action, this right was' denied him. The court had no power to limit his defense. It was not a supplemental answer, but an answer to the.amended complaint, and took its place in the action, so far as the trial was concerned, precisely as though it had been interposed when issue was first joined.
Upon this ground, as well as those stated by Mr. Justice Laughlin, I am of the opinion that the' judgment appealed from should be reversed and a new trial ordered.
Judgment and order reversed, new trial granted, costs to appellant to abide event.