26 N.Y.S. 825 | N.Y. Sup. Ct. | 1893
In this action a demurrer was interposed to the complaint, and after a trial of the issue of law a decision was made by the court pursuant to section 1021 of the Code sustaining the demurrer upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action, and that there was a defect of parties apparent upon the face of the complaint, in that George Goodwin was not made a party plaintiff or defendant; and directing that an interlocutory judgment be entered sustaining the demurrer, with leave to the plaintiff to amend; and further directing that, in case the plaintiff should fail to amend, final judgment should be entered sustaining said demurrer, with costs. The interlocutory judgment was thereupon entered; and, the plaintiff not having amended, the final judgment-was entered, and from such final judgment this appeal was taken, and notice was given that upon the appeal the interlocutory judgment would be brought up for review.
It is now urged that, inasmuch as the appeal is taken from the final and interlocutory judgments, and no notice is given of any intention to review the order directing their entry, the appeal brings-up only the question whether the judgment conforms to this order; and certain decisions of the superior court are cited to sustain this proposition, and also the case of Bank v. Lynch, 76 N. Y. 514. The headnote of this last case is presented upon the brief, but an examinar tian of the opinion will show that the consequences of the headnote-which are relied upon by the respondents by no means follow. It will be seen that the provisions of section 1021 in reference to the-decision of the court upon the trial of issues of law raised by demurrer are similar to those of section 1022, in reference to what, is to be done by the court or referee upon the trial of the whole issue of fact. In the one case the decision of the court or the report of the referee upon the trial of a demurrer must direct the final or-interlocutory judgment to be entered thereupon. Upon the trial of the whole issue of fact, the decision of the court or the report of the referee must state separately the facts found and the conclusions-of law, and it must direct the judgment to be entered thereupon. We have never heard it advanced but once that in the case of an. appeal from a judgment entered upon a referee’s report or the decision of the court, in order to bring up for review the proceedings-
The complaint in this action alleged that in October, 1889, the plaintiff purchased certain Canadian lands of one Goodwin, and gave him a purchase-money mortgage of, $60,000. Subsequently, the defendant being about to purchase these lands of the plaintiff, he and Goodwin made an agreement by which Goodwin agreed to accept in satisfaction of the unpaid $60,000 of purchase money and of the mortgage given by the plaintiff the sum of $52,500, and the defendant promised to pay Goodwin this reduced sum. Shortly afterwards the defendant purchased these lands of the plaintiff, and by the deed1 agreed to pay Goodwin the $52,500, and to relieve the plaintiff of and from, and to indemnify him against, all liability whatever to Goodwin. The defendant also by the deed agreed to relieve the lands from the lien of the mortgage, but no time in which the defendant was to perform is alleged. The defendant thereafter paid Goodwin some $30,000 of the $52,500. The plaintiff subsequently repurchased the land, but avers that by the deed of purchase the obligations of the defendant in the premises were unaffected. Subsequently, Goodwin brought an action in the Canadian courts against the defendant and others, to which the plaintiff was not a party, and obtained a judgment decreeing a foreclosure of the lien of Goodwin upon said lands, and directing a sale thereof for the satisfaction of said lien. Subsequently the plaintiff commenced an
It is urged that the complaint does not state facts sufficient to constitute a cause of action, because by the prayer for judgment the plaintiff seeks to recover for himself the money directed to be paid into the Canadian court by the Canadian judgment. It is urged that that judgment determined that it is into the Canadian court, and not to the plaintiff, that the defendant must make payment; and when the plaintiff comes into this court in a suit on that judgment, and in the face of it asks that the money be paid to him, it would seem that the rule to which he appeals requires that he be thrown out of court-; and the case of Green v. Insurance Co., 84 N. Y. 572, which was an action on a Mississippi judgment, is cited in ■support of this proposition. All that that case decides is that, it appearing upon the face of the declaration that the action was brought for the use and benefit of- the plaintiff, in view of the rule of the common law which prevailed in that state that choses in action were not assignable, it was held that the judgment roll furnished - presumptive evidence that the plaintiff was the owner of the judg
But it is urged that the appellant’s allegation in respect to the laws, rules, and practice of Canada and Canadian courts is not sufficient to justify any proof of the law and practice of Canada; and the case of Rothschild v. Railway Co., 59 Hun, 455, 13 N. Y. Supp. 361, is cited, which case undoubtedly sustains the contention of the respondent, so far as relates to proof of foreign laws. But this case is, we think, overruled by the case of Schluter v. Bank, 117 N. Y. 125, 131, 22 N. E. 572, in which an allegation that a surrogate of New Jersey had jurisdiction and was duly authorized and empowered by the laws of New Jersey to issue letters of administration, was held to be sufficient to authorize proof of the laws of New Jersey and the jurisdiction of the surrogate in issuing letters. The allegation in question in the case at bar being admitted by the demurrer, there seems to be no reason why the action upon the part of the plaintiff as the party entitled to collect the money cannot be maintained. The judgment, should therefore be reversed, with leave to the defendant to answer upon payment of the costs of the appeal, and of the demurrer in the court below. All concur.