1 Abb. Pr. 262 | The Superior Court of New York City | 1863
Although no exception was taken to the report of the referee upon the ground that the cause of action as found was not that set forth in the complaint, which seems to be necessary in some cases (Belknap v. Seely, 14 N. Y. [4 Kern.], 143 ; Parsons v. Suydam, 3 E. D. Smith, 280); yet the objection was distinctly taken on the motion to dismiss the complaint, after the plaintiff’s evidence had been introduced, that he had not established his cause of action, and, as will presently be seen, all subsequent evidence was admitted for another purpose,—that of taking an account. A subsequent finding by a referee of a different cause of action, although fully proved, would still less deprive the defendant of the benefit of such an objection, since in fact it would be an admission that it was well founded.
This becomes the more proper, as the referee, after deciding upon mere circumstantial testimony, that the .parties stood in the relation of mortgagor and mortgagee, so as to entitle the plaintiff merely to redeem the premises, instead of entirely avoiding the instruments assailed, prevented the defendant from introducing any direct testimony to disprove the existence of such relation. ¡Neither party had charged or admitted it in the proceedings, or apparently attempted knowingly to prove or disprove it. Such an exclusion of evidence 'involves in the first place the question how far it was a proper exercise of discretion and not the deprivation of an absolute light. The order of introducing evidence, the re-calling of a
I have been unable to reconcile the cause of action, as found by the referee, with that made in the complaint. That does not state any money advanced or agreed to be advanced by the defendant: on the contrary, it alleges the payment of the ¡Newell ■ judgment by the plaintiff, his having furnished money to the defendant to pay those of Crosby and McDtinald, under which the sale was made, and also that he paid the interest on the mortgage,.the taxes and water rates, and the expenses of repairs and alterations, as well as received rents from tenants, and even from the defendant, apparently as evidence of ownership. There were no other moneys advanced or to be advanced. The plaintiff alleges in his complaint"‘that the judgment confessed by him was given to enable the defendant to redeem, and on his promise to convey the property to the plaintiff as soon as he had done so. So, too, he alleges therein that the quit-claim was given to enable the defendant to procure a new loan, and on a promise of re-conveying immediately afterwards. ¡No terms, qualifications, or conditions are stated as to such re-conveyance ; on the contrary, it is alleged to have been peremptorily demanded. There is no pretence of the defendant taking security for any sums to be advanced, no admission of any advance. The assumption that the instruments assailed by the complaint were taken as security for sums advanced and to be advanced, and valid as mortgages, contradicts the main charges in it. There is no evidence of any promise to re-convey, except the plaintiff’s testimony; and he does not state any terms or conditions of re-conveyance; the defendant denies it;
The referee has also found that the plaintiff relinquished his right to the part of the premises on which ¡Nos. 319 and 321 Bleecker Street are built. Whether this was done by writing, or orally, is not stated: there is no evidence of the former, and the only ground of inferring a relinquishment was that the plaintiff did not collect the rents of them, and told the builder, Rodgers, that he did not own the rear ground.
It will not be necessary to inquire minutely into the question whether there is evidence in the case to sustain the referee’s findings, which must ultimately rest wholly upon the superior reliance to be placed upon the plaintiff’s testimony rather than upon that of the defendant, notwithstanding the disproof of the
The promise to give a deed back, could not convert the defendant into a mortgagee. He might be rendered a trustee, in case he had induced the plaintiff, himself, to abstain from redeeming; but there is no evidence of that. Any misrepresentation in regard to the quit-claim deed could not deprive the defendant of the title which he acquired by redemption under the Rewell judgment, independently of his right to redeem under his own: and which he could have acquired without any assistance from the plaintiff.
But the main difficulty remains that the referee has given • judgment on a cause of action as found by him, different from that sued upon and set out in the complaint. That was for fraud in obtaining a deed from the sheriff, and a quit-claim "deed-from the plaintiff. The fraud consisted in instigating a suit in the plaintiff’s name, allowing a judgment to be obtained against him for attorneys’ fees in such suit, omitting to apply moneys furnished to pay such claim, procuring a sale by a sheriff, using a previous judgment that had been paid by the plaintiff, and one newly confessed, to redeem from such sale, inducing- the plaintiff to believe that the title was still in- him-, and procuring a quit-claim on a promise forthwith to re-convey, and a false representation of the object of procuring it. Such fraud not being proved, the referee has found a cause of action on contract by which the defendant took the Rewell judgment, sheriff’s and quit-claim deeds as security for moneys advanced and to be advanced. This is not a case of variance under the 16th section of the Code, but a failure to prove the cause of action in its entire scope and meaning (Salters v. Genin, 7 Abb., 193 ; Texier v. Gouin, 5 Duer, 389 ; Walter v. Bennet, 16 N. Y., 250; Kelsey v. Western, 2 N. Y. [2 Comst.], 500). An amendment of the proceedings to correspond with suchffindings, even if it could now be made, would change substantially the
Ho stronger case can well be imagined, of surprise by proving an entirely different cause of action from that set out in the complaint. Had the pleadings been at common law as formerly, a replication which had set up the cause of action such as that' found would ¿ave been such a departure from the complaint as to make the replication defective. The issues were fried on a question of fraud, to which alone the testimony was directed. The referee held that by indirection and inference it established circumstantially a contract not set up in the complaint, yet refused to allow the defendant to introduce direct testimony to rebut such inference. The report, therefore, was unwarranted by the evidence.
The judgment should be reversed, and the order of reference discharged, a new trial to be had, and the costs of the appeal to abide the event. > /
Present Moncrief, Robertson and Monell. JJ.