182 N.E. 12 | NY | 1932
This action, begun August 30, 1929, is for the recovery of a balance on a demand note dated March 7, 1919, made by defendant Smith and indorsed by appellants Getman, Bedell and Miller as well as six other defendants who are not represented on this appeal. The principal defense of these three appellants is the Statute of Limitations. Payments on the note were made by Smith as late as May 8, 1924, but the trial justice, without a jury, held that such payments by the maker of the note did not toll the running of the statute as against the indorsers. The Appellate Division reversed and decided that, inasmuch as the facts had been found at the trial that by agreement at the time of the execution of the note the maker and the indorsers were to be and were co-makers and primarily liable and were all principals and not accommodation indorsers and that the maker and one other were agents for all the signers and also that the payments were made by the maker with appellants' consent and on their behalf, the case is taken out of the statute by reason of the payments by the indorsers through their authorized agent within the time fixed by statute. The opinion states that "upon the facts as found" (
Only the judgment roll was before the Appellate Division. The evidence upon which the findings were made was omitted from the record. The appellants in this court, although successful at the trial, had excepted to the finding in relation to an agreement by them to be co-makers and principals and primarily liable as well as to the finding in relation to an agreement by which the maker was to represent them as agent and to the finding that payment was made with their consent and on their behalf. They argue that even though it might be concluded that the theory adopted for their favorable judgment at the trial was incorrect, they are entitled at some time to show that the result, for other reasons, was right and that the findings of fact upon which the Appellate Division based its conclusions of law were either contrary to or not supported by the evidence. They complain that, by reason of the absence of the evidence from the present record and on account of the final judgment directed against them on this record, they are for all time deprived of their right to a review of the whole case on the facts whereby their judgment might be supported on grounds differing from those stated at the trial.
We agree that the findings, as they stand, lead to the conclusion that payment by the maker, as agent, bound appellants (See Brooklyn Savings Bank v. Wechsler Estate,
It was the plaintiff which was the party that appealed. Since it was satisfied with the findings of fact and relied only upon exceptions to rulings on questions of law, it was not bound to make a case (Civ. Prac. Act, § 575; Rochester Lantern Co. v.S. P. Press Co., supra), and the form of the record, for the purpose of presenting questions of law only, meets the requirements of the statute. However, a party excepting to findings of fact has the right at some time during the course of the litigation to a review directed to the question whether such findings are supported by evidence. The authority conferred by section 584 of the Civil Practice Act upon any appellate court to render final judgment upon the right of any or all of the parties according to law is limited by the language of that section. Where it may be "necessary or proper to grant a new trial," any appellate court to which an appeal is taken, including of course this court, may grant it. Whether it be proper to protect a litigant's right at some stage to an opportunity to review facts, in cases where the privilege of an appeal is permitted, admits of only one answer. According to the judgment before us no opportunity can ever be accorded. The case of Schnibbe v.Glenz (
The judgment of the Appellate Division should be modified by granting a new trial and, as so modified, affirmed, with costs to appellants in the Appellate Division and in this court.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, HUBBS and CROUCH, JJ., concur.
Judgment accordingly.