15 N.Y.S. 954 | City of New York Municipal Court | 1891
Before considering the merits of defendant’s appeal from the judgment sustaining plaintiff’s demurrer to the affirmative defense in the answer for insufficiency, an investigation should be made of the question whether the general term should listen to deiendant’s objection that the complaint does not state facts sufficient to constitute a cause of action, since lie has made no such objection at the trial of the demurrer at special term, but does so for the first time on the hearing of this appeal. It is the established rule of practice that on the trial of a demurrer to an answer for insufficiency the defendant can attack the complaint on the ground of its insufficiency; but can he remain silent at the 'trial as to such defect, and still have the right to make available objection upon the hearing of the appeal from the judgment? Such is the contention of the defendant’s counsel. It does seem that the, maintenance of an orderly system of practice requires an investigation of this question. Judge Pratt, in writing at general term, in dismissing an appeal in Pope v. Dinsmore, 29 Barb. 367, says: “It is claimed on the part of the defendant that an objection to the sufficiency of the complaint may be taken for the first time upon appeal. If tiiat be so, this appeal cannot be dismissed. It is true that when the complaint does not state facts sufficient to constitute a cause of action the objection need not necessarily be made by demurrer; but the question, in my opinion, should in some form be raised and passed upon at special term or circuit before the party objecting should be allowed to appeal. Under the Code, the appeal to the general term seems" to be provided for the review of actual determinations of the court at circuit and special term.” And Judge Gilbert, also at general term, in Howell v. Mills, 7 Lans. 193, says: “The complaint contains no averment that the plaintiff was in possession of the premises to be partitioned. Neither of the defendants interposed a demurrer on this ground, nor was the objection taken at special term in any form. We think it cannot be presented here for the first time.” Although these two cases did not present nor consider a question similar to the one now under investigation, and cannot, therefore, be deemed positive authority, still they involved the same general principles of practice. However, it would seem that the court of appeals has passed practically upon the same question in Hofheimer v. Campbell, 59 N. Y. 269, in which the allegations of the complaint were not denied, and on the trial no proof thereof was made or offered; but the answer alleged an affirmative defense, which the judge at trial decided was not good in law, and refused to allow proof thereof, to which defendant duly excepted, whereupon a verdict was directed for plaintiff for the sum claimed in the complaint. No objection was there made to the sufficiency of the complaint, but on the hearing at the general term of the appeal taken by the defendant his counsel then for the first time made specific objection that the complaint did not stale facts sufficient to constitute a cause ot action; and Cliiel Justice Church, wr.ting for affirmance of the general term, said: “It is insisted that the attention of
The objection of this defendant, the surety company, to the complaint would seem to be technical, for at most plaintiff lias accidentally omitted to add the words “mentioned in said undertaking” after the word “defendant,” where he alleges that defendant has not paid the value of the use, etc.; and it is fair to assume that, had objection been made to this omission at the trial, the judge would have allowed it to have been supplied, if requested to do so. Moreover, should the general term consent to hear defendant’s objection originally, it would have all the authority of the special term, including that of allowing plaintiff to amend his complaint; but the assumption and exercise generally of such original authority by a general term would lead on and on until its appellate authority might be lost sight of in the labyrinth of original questions which would be presented for consideration. The plaintiff’s demurrer, on the other hand, is substantial, and directed at the very substance of the defense, and, if sustained, would merely leave the defendant as contesting the reasonable value of the use and occupation; and thus is reached the consideration of the question whether the affirmative defense in the answer is good in law. The defendant surety company did, by the undertaking sued upon, undertake that, if the judgment appealed from, which was for $260 and the recovery of immediate possession of certain real property, is affirmed, the appellant Bohanna will pay the costs of appeal, the sum directed to be paid by the judgment appealed from, and the value of the use and occupation of the property from the time of taking such appeal until the delivery of possession pursuant to such judgment. The judgment appealed from was affirmed, and it seems that the $260 and the costs have been paid, but the value of the use and occupation has not been paid, and this action is brought for the same against the surety company by the respondent in that action. The substance of the affirmative defense of the surety is that the amount of the value of such use and occupation has not been adjusted as between Bohanna, the appellant, and Wallerstein, respondent, by action or otherwise. The undertaking is a contract of suretyship, by which the surety assumes to perform the contract of the principal debtor (Bohanna) if he should not; and is a direct liability to the plaintiff for the act to be performed by the debtor, which was the payment of the value of the use and occupation of the premises. The surety’s liability by action was fixed upon the default of the principal debtor, and of which it must inform itself from the principal debtor. It was not necessary for plaintiff to first bring another action against the principal debtor for such value, and if he had done so, and had prosecuted the same to judgment, it could have been of no avail in an action against the surety, who would not be liable for the costs of the same, and could still force the plaintiff to prove the value of the use and occupation. The complaint shows that the judgment appealed from, which directed that plaintiff have immediate possession, was entered and appealed from May 21, 1889, and that the final judgment of affirmance was filed December 20, 1890, and hence the plaintiff was on that day entitled to possession and to the value of the use and occupation from “the time of the taking of said appeal until the delivery of possession,” and which had certainly been stayed by the giving of this undertaking until the day of final judgment of affirmance. The surety company must be presumed to have notice of all defaults of the principal debtor, and, if the amount prayed for in the complaint is excessive, the surety company should communicate with Bohanna, to whom it must look for indemnity, and inform him of the conditions of this action, and ascertain from him what is the reasonable worth of the use and occupation, and upon such information offer judgment for the just amount owing, for otherwise it may have a larger bill of costs taxed against it. The final judgment of affirmance was for immediate possession and the value of the use and occupation of the premises. The only thing re