100 N.Y.S. 263 | N.Y. App. Div. | 1906
This appeal has been reargued. After hearing the original argument we reversed the judgment and dismissed the complaint. (See
After the decision in favor of the defendants had been rendered the plaintiff obtained leave from the trial court to reopen the trial in order to be allowed to prove fraud and waste, and after a rehearing the court filed a second opinion directing the judgment appealed from.
The action is brought by a stockholder of the corporation known as the John Polhemus Printing Company, and is brought against that company and its five directors. The' purpose of the suit is to set aside as fraudulent a sale of a printing press alleged to have been made by defendants Horace. Gr. Polhemus and his wife, E. Dixon Polhemus, to the company, they being at the time majority'stockholders. The learned trial court refused to set the sale aside because the press at the time of the trial was worn out in use by the company, and the court well stated that it would be unjust “to make the vendor take it back and restore the money in the absence of proof of fraud or waste” (sxipra, 145). By the judgment appealed from the sale has been in effect confirmed, and the defendant directors are required to pay the sum of $3,000 on a finding of fact that the purchase was made by them with the intent and purpose of cheating and defrauding the company out of that much money. The nur
It may be conceded that the defendant directors were negligent in not ascertaining by investigation that they were agreeing to pay more for the press than it was worth, and that for that reason they should be compelled to make good the difference. That, however, could only be-done in an action brought upon that theory. It has been suggested that this court could make a finding, upon the evidence, of such negligence in support of the judgment appealed from, but the province of an appellate court is to review a trial actually had, not to try a case ele novo, and there should be a hearing and determination of the issue of negligence before that question can be legally reviewed. As was said by Mr. Justice Jenks in Levin v. Dietz (106 App. Div. 208, 210) : “ The Appellate Division is not a trial court, and it is not within the general powers of a court of review to assume the functions of a trial court and to make a finding upon the evidence in order to sustain a judgment under review.” (See, also, Benedict v. Arnoux, 154 N. Y. 715, and Snyder v. Seaman, 157 id. 449.)
As was said in Wright v. Delafield (25 N. Y. 266, 270) : “ Parties go to court to try the issues made by the pleadings, and courts have no right impromptu to make new issues for them, on the trial to their surprise or prejudice,- or found judgments on grounds not put in issue, and distinctly and fairly litigated.”
In Becker v. Krank (75 App. Div. 191, 193, 194) the court said : “ It is a settled rule that recovery must be had, if at all, according to the allegations of the complaint. (Day v. Town of New Lots, 107 N. Y. 148, 154 ; Wright v. Delafield, 25 id. 266.) It was said by Judge Earl, in Southwick v. First National Bank (61 How. Pr. 170)
In Dudley v. Scranton (57 N. Y. 424) it was held that a cause of action based on fraud in the execution of a written contract is distinct from that founded on a mistake merely, and it is not competent upon the trial to make a substitution of one for the other.
In Postal v. Cohn (83 App. Div. 27) this court held that in an action brought to recover damages for a fraud perpetrated on the sale of a horse, a recovery could not be had upon the theory of a breach of ■ warranty accompanying the sale of the horse, even though the proof established such a cause of action.
In Absalon v. Sickinger (102 App. Div. 383) we held that in an action brought to set aside a deed because of false representation that it was a will, a judgment could not be sustained in favor of the plaintiff which was rendered upon a finding that the execution of-the deed had been procured by undue influence. (And see Kervan v. Hellman, 110 App. Div. 655.)
Whatever may be done at the trial by amendment,-etc., a judgment for one cause of action cannot be supported upon appeal as if-for another cause of action. (Fisher v. Rankin, 25 Abb. N. C. 191; Dood v. Rothschild, 31 Misc. Rep. 721 ; Hicks v. British-America Assurance Co., 162 N. Y. 284.) A case must be decided on the appeal on the theory upon which it was tried (Sears v. Wise, 52 App. Div. 118), and in Miller v. King (88 Hun, 181, 182) Presiding Justice Browit, writing for the former General Term in this department, said: “ The plaintiff should not be permitted to sustain his judgment on' a different theory than that upon which it was recovered at the trial.”
In this connection the language of Chief Judge Audbews in Kountze v. Kennedy (147 N. Y. 124, 128, 129) seems peculiarly applicable: “ The principle stated by Ckoke, J. (3 Bul. 95),
I think also that it was error in the learned trial court to hold on the rehearing that the burden of proving the fraud alleged in the complaint was not upon the plaintiff, but that, on the contrary, the burden rested upon the defendant directors to show the absence of fraud. Whatever may be the rule as to a director selling to the company property of his own, it cannot be that, as to the other directors, a presumption of fraud will arise from the mere fact that they have voted to make a purchase of property at a somewhat higher price than its actual value.
The judgment should be reversed on reargument, and a new trial granted.
Woodward, Jenks, High and Miller, JJ., concurred.
Judgment reversed on reargument and a new trial granted, costs to abide the final award of costs.
S. O., Southwiak v. Mrst Nat. Bank of Memphis (84 N. T. 420, 429).— [Rep.
Baity v. Merrell (3 Bulst. 95).— [Rep.