Bokkelein v. Berdell

• Citation: 29 N.E. 254,130 N.Y. 141
• Parties: VAN BOKKELEIN v. BERDELL.
• Decision Date: 01 December 1891
• Court: New York Court of Appeals

130 N.Y. 141

29 N.E. 254

VAN BOKKELEIN

v.BERDELL.

Court of Appeals of New York, Second Division.

Dec. 1, 1891.

Appeal from supreme court, general term, second department.

Action by Spencer D. C. Van Bokkelein against Robert H. Berdell for an accounting. Judgment for plaintiff. Defendant appeals. Reversed.

Philip L. Wilson, for appellant.

William W. Niles, for respondent.

HAIGHT, J.

Under a stipulation of the parties, the interlocutory judgment is to stand, and the only questions brought up for review pertain to the accounting thereunder.

It appears that the plaintiff and defendant were copartners, doing business under the firm name of Robert H. Berdell & Co.; that they dissolved on the 30th day of September, 1858, each signing the following statement, entered in the books of the company: ‘The undersigned have this day dissolved partnership by consent; either party will sign in settlement. Store and office furniture and fixtures, books of account, papers, etc., to be the property of Robert H. Berdell. New York, September 30, 1858.’ It appears that, during the continuance of the copartnership, certain real estate had been acquired by the company, the title of which was taken in the name of the defendant, for which in the interlocutory judgment he was ordered to account for the rents, issues, and profits, after being credited with all amounts paid in relation thereto. It further appears that upon the house and lot known as ‘96 Dean Street’ there was a mortgage for $2,500, and upon the 10 lots known as the ‘Perry Lots' there was a mortgage for $3,300. The defendant testified that both of these mortgages had been paid by him, and he was corroborated in this statement by the testimony of Mr. Middleton, who held the $2,500 mortgage, and by the production of his check-book and satisfaction pieces. There is no pretense that the mortgages were paid by the plaintiff or by any person other than the defendant. It is suggested that the defendant has incumbered the premises with another mortgage, but whether the same has been paid or is now a lien upon the premises does not appear. If he has incumbered the premises by another mortgage, the plaintiff may be entitled to relief in reference thereto; but we do not understand that that fact would deprive the defendant of his right to be credited with the amount, paid in satisfaction of the previous existing mortgages. The referee, on request, refused to find that either of these mortgages had been paid.

It is suggested that there is no certificate that the case contains all of the evidence. But upon the trial of an issue of fact by a referee, or by the court without a jury, a refusal to make any finding whatever upon a question of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law. Code, Civil Proc. § 993. And a ruling upon a question of law, duly excepted to, serves as a notice to the respondent of an intention to raise a question of legal error, and puts upon him the responsibility of adding by amendment any omitted evidence on the question. Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482. The appellant, however, has neglected to take an exception to the refusal of the referee to find that these mortgages were paid. The only exception taken is to the finding of the referee that the defendant had paid upon the Dean-Street house, for interest, taxes, premium insurance, moving factory, and repairs, the sum of $2,101.70, on the ground ‘that said finding does not embrace all the payments made on said property by the defendant to the credit of which he is entitled, and on the ground that said finding is too general, and should specify what payments are embraced therein.’ A similar exception was also taken to the finding that was made in reference to the Perry lots. Whether these exceptions are sufficiently specific to raise the question for review in this court we shall not stop to consider, for there are other exceptions upon which we prefer to rest our decision.

The referee appears to have tried the case upon the erroneous theory that the defendant's testimony was not...