Winfield v. Potter

10 Bosw. 226 | The Superior Court of New York City | 1863

By the court, Moncrief, Justice.

This is an appeal from a judgment in favor of the plaintiff, entered ;ipon the verdict of a jury, and also from an order denying a motion for a new trial.

There was no error in denying the motion to dismiss the complaint. The application was made during the progress of the direct examination of a witness, (the assignor of the plaintiff,) interrupting the orderly administration of justice in the trial of a cause. It appears in the double character of an objection to evidence which had been given, tending to show performance of the agreement on the part of the assignor of the plaintiff, (Hart,) and of a motion to dismiss the complaint on the ground that no consideration is named in the agreement. .

The agreement was not void under the statute; taken together, the two instruments constituting the contract, one signed by the defendant and the other by Mr. Hart, a consideration is expressed. Besides, the agreement cannot, in a just sense, be treated as an undertaking to pay the debt of another; it partakes more of the character of the vendee of personal property, upon becoming the possessor of the instrument claimed to be indicia of title assuming and agreeing to pay to the extent of the alleged lien. The expression of opinion by the learned chief justice, in his charge to the jury, is well sustained by the testimony, and was not error: the question was submitted to the jury. (Coyles agt. Hurtin, 10 J. R., 85, 88; Bulkly agt. Keteltas, 4 Sandf. R., 450, 454.) The case was fully and fairly submitted to the jury, who rendered a verdict for the plaintiff, doing, as I think, justice between the parties to the action. The other objections and exceptions are embraced by the views expressed with reference to the first exception, or so plainly untenable as not to require discussion.

The judgment and the order denying the motion for a new trial must be affirmed.