151 N.Y. 258, Brady v. Nally

Citation:151 N.Y. 258
Party Name:JAMES H. BRADY, Respondent, v. CHRISTOPHER NALLY, Appellant.
Case Date:December 22, 1896
Court:New York Court of Appeals

Page 258

151 N.Y. 258

JAMES H. BRADY, Respondent,

v.

CHRISTOPHER NALLY, Appellant.

New York Court of Appeal

December 22, 1896

Argued December 11, 1896.

Page 259

COUNSEL

J. Newton Fiero for appellant. The proof having been received without objection, it is immaterial whether or not it strictly conformed to the allegations in the answer. The plaintiff is not in a position to raise the question, having acquiesced in that method of trial. (Tisdale v. Morgan, 7 Hun, 583; Hamilton v. Gridley, 54 Barb. 542; Gray v. Barton, 55 N.Y. 72; Tyng v. C. Warehouse Co., 58 N.Y. 313; Hofheimer v. Campbell, 59 N.Y. 272; Wellington v. Morey, 90 N.Y. 656; Knapp v. Simon, 96 N.Y. 291; Fallon v. Lawler, 102 N.Y. 228; Romeyn v. Sickles, 108 N.Y. 653; Tarbell v. R. E. S. Co., 110 N.Y. 180; Frear v. Sweet, 118 N.Y. 454.) Parol evidence was properly admitted to show that plaintiff was the real party in interest in the contract for the Ninety-sixth street work. (Briggs v. Partridge, 64 N.Y. 357; Higgins v. Seinor, 8 M. & W. 834; Truman v. Loder, 11 A. & E. 594; Dykers v. Townsend, 24 N.Y. 61; Coleman v. F. Nat. Bank, 53 N.Y. 393; Story on Agency, 148-160; Hill v. Miller, 76 N.Y. 32; Putnam v. Ramsey, 7 Wkly. Dig. 530; Nicoll v. Burke, 78 N.Y. 580; Ludwig v. Gillespie, 105 N.Y. 653; Considerant v. Brisbane, 22 N.Y. 389; Schaefer v. Henkel, 75 N.Y. 378.)

C. N. Bovee, Jr., and J. McG. Goodale for respondent. The General Term did not err in finding that there was a fatal variance as to the counterclaim. (Abbott Brief on Pleadings, § 1027; Wright v. Delafield, 25 N.Y. 266; Day v. Town of New Lots, 107 N.Y. 148.) The decision of the General Term should be affirmed, apart from the question of variance, because there was no evidence whatever that anything was due the defendant on the contract. (Colwell v. Lawrence, 38 N.Y. 73;

Page 260

Wilson v. Deen, 74 N.Y. 534; Schmittler v. Simon, 114 N.Y. 183; Thomas v. Scutt, 127 N.Y. 138.)

VANN, J.

The referee, before whom this action was tried, found in favor of the plaintiff upon the claim set forth in the complaint, for labor performed and materials furnished, and allowed him the sum of $3,125 therefor. He found in favor of the defendant upon the third counterclaim set forth in the answer, for labor and materials, and allowed him therefor the sum of $5,139.68, including interest. He directed judgment in favor of the defendant for the difference between these sums, with costs. The plaintiff alone appealed, and the General Term reversed the judgment, upon the ground that 'the findings of fact do not sustain the allegations of the answer in respect of the counterclaim.'

While it is true that the evidence went far beyond the allegations of the answer, as it was received without any objection based upon that ground, and no motion was made to strike it out as not within the issues, the case comes under the rule that defects, which, if pointed out during the trial, might have been obviated or avoided, are not available on appeal. (Hofheimer v. Campbell, 59 N.Y. 269-272; Knapp v. Simon, 96 N.Y. 284-291; Fallon v. Lawler, 102 N.Y. 228-233; Wells v. World's Dis., etc., 120 N.Y. 630; Gillies v. Manhattan Beach Imp. Co., 147 N.Y. 420.) If the proper objection had been made upon the trial an amendment of the answer might have been allowed so as to enlarge the issues by embracing the items which the General Term held were not covered by the pleadings. Under the circumstances it was the duty of that learned court to consider the facts as proved, rather than as alleged, and to regard the answer as amended by implied consent so as to justify the admission of the evidence objected to upon appeal for the first time.

It is, however, insisted that the judgment entered on the report of the referee was properly reversed, because there was no competent evidence tending to show that anything was due to the defendant upon the contract...

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56 practice notes
  • 124 So.2d 892 (Fla.App. 2 Dist. 1960), 1778, Ross v. Florida Sun Life Ins. Co.
    • United States
    • Florida Florida Court of Appeals Second District
    • December 2, 1960
    ...and oral testimony even if admitted will not control the written contract, * * * unless admitted without objection. (Brady v. Nally, 151 N.Y. 258 [45 N.E. 547].)' * * * We think the phase of the parol evidence rule here in question may therefore be stated to be that in some form the attenti......
  • 153 N.Y. 294, In re Callister's Estate
    • United States
    • New York New York Court of Appeals
    • June 8, 1897
    ...law nor statute stands in the way. (In re N.Y. L. & W. R. R. Co., 98 N.Y. 447; Foley v. Royal Arcanum, 151 N.Y. 196; Brady v. Nally, 151 N.Y. 258; L. 1860, ch. 90, §§ 1, 2; Nash v. Mitchell, 71 N.Y. 199; L. 1896, ch. 272, § 21; L. 1884, ch. 381; L. 1892, ch. 594.) Independently of the s......
  • 247 N.Y. 377, Mitchill v. Lath
    • United States
    • New York New York Court of Appeals
    • February 14, 1928
    ...if admitted will not control the written contract (O'Malley v. Grady, 222 Mass. 202), unless admitted without objection. (Brady v. Nally, 151 N.Y. 258.) It applies, however, to attempts to modify such a contract by parol. It does not Page 380 affect a parol collateral contract distinct from......
  • 279 N.Y. 364, Sullivan v. Taylor
    • United States
    • New York New York Court of Appeals
    • January 10, 1939
    ...defendants that only part of the resolution of his appointment is void. ( Hotchkiss v. City of Binghamton, 211 N.Y. 279; Brady v. Nally, 151 N.Y. 258; Matter of Pet. of N.Y. L. & W. R. R. Co., 98 N.Y. 447; Fisher v. City of Mechanicville, 225 N.Y. 210; Greenberg v. Remick & Co., 230......
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56 cases
  • 124 So.2d 892 (Fla.App. 2 Dist. 1960), 1778, Ross v. Florida Sun Life Ins. Co.
    • United States
    • Florida Florida Court of Appeals Second District
    • December 2, 1960
    ...and oral testimony even if admitted will not control the written contract, * * * unless admitted without objection. (Brady v. Nally, 151 N.Y. 258 [45 N.E. 547].)' * * * We think the phase of the parol evidence rule here in question may therefore be stated to be that in some form the attenti......
  • 153 N.Y. 294, In re Callister's Estate
    • United States
    • New York New York Court of Appeals
    • June 8, 1897
    ...law nor statute stands in the way. (In re N.Y. L. & W. R. R. Co., 98 N.Y. 447; Foley v. Royal Arcanum, 151 N.Y. 196; Brady v. Nally, 151 N.Y. 258; L. 1860, ch. 90, §§ 1, 2; Nash v. Mitchell, 71 N.Y. 199; L. 1896, ch. 272, § 21; L. 1884, ch. 381; L. 1892, ch. 594.) Independently of the s......
  • 247 N.Y. 377, Mitchill v. Lath
    • United States
    • New York New York Court of Appeals
    • February 14, 1928
    ...if admitted will not control the written contract (O'Malley v. Grady, 222 Mass. 202), unless admitted without objection. (Brady v. Nally, 151 N.Y. 258.) It applies, however, to attempts to modify such a contract by parol. It does not Page 380 affect a parol collateral contract distinct from......
  • 279 N.Y. 364, Sullivan v. Taylor
    • United States
    • New York New York Court of Appeals
    • January 10, 1939
    ...defendants that only part of the resolution of his appointment is void. ( Hotchkiss v. City of Binghamton, 211 N.Y. 279; Brady v. Nally, 151 N.Y. 258; Matter of Pet. of N.Y. L. & W. R. R. Co., 98 N.Y. 447; Fisher v. City of Mechanicville, 225 N.Y. 210; Greenberg v. Remick & Co., 230......
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