Chapman v. Comstock

• Decision Date: 01 October 1892
• Parties: CHAPMAN v. COMSTOCK.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 509

31 N.E. 876

CHAPMAN

v.COMSTOCK.

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, fourth department.

Action by Frank B. Chapman against George F. Comstock. From an order of the general term reversing a judgment entered upon a verdict in favor of plaintiff, and an order denying a motion for a new trial, (11 N. Y. Supp. 920,) plaintiff appeals. Appeal dismissed.

Edwin Nottingham, for appellant.

Andrew H. Green, for respondent.

HAIGHT, J.

This action was brought to recover the sum of $8,973.37, being the amount due and owing the plaintiff by the American Dairy Salt Company, Limited, a business corporation organized under chapter 611 of the Laws of 1875. It was sought to maintain the action against the defendant upon the ground that he was the president and director of the corporation, and that the corporation had failed to file the annual report required by the statute during the years 1881 to 1888, inclusive. On and prior to February 11, 1882, the plaintiff held a promissory note for $10,880.90 of the Onondage Coarse Salt Association, of which Thomas Molloy was treasurer. That company was winding up its business, and desired to pay the note. The plaintiff asked Molloy if he had any place he could use it for him, saying that he had no place for it, and did not want to use it at that time. Molloy said he could take it for the American Dairy Salt Company, Limited, of which he was also treasurer. Further conversation took place in reference to the responsibilty of the company and its directors, resulting in the plaintiff's leaving the money with that company; and it issued to him a pass book, in which was entered: ‘Frank B. Chapman, in special account with the American Dairy Salt Company, Limited.’ Under the credit column was entered, February 11, 1882, cash, $10,880.90, and semiannually thereafter interest was credited upon that amount at the rate of 6 per cent. The plaintiff was subsequently paid $4,300 April 30, 1885, $1,000 June 1, 1888, $1,000 July 11, 1888, for which receipts were given. Shortly after the last payment the company failed, refused to pay the balance, and in October following a receiver was appointed. The complaint alleged that the money was deposited with the company by the plaintiff. This was controverted by the answer, which alleged that it was loaned; that the corporation was not organized or authorized to do a banking business, or to receive deposits of money, but, on the contrary, was forbidden by law from so doing; and that more than three years had elapsed after the cause of action accrued before the commencement of this action. The trial court submitted to the jury the question as to whether the leaving of the money with the company was a loan or a deposit, instructing them that if it was a loan it was not necessary for the plaintiff to make a demand, and that his right of action accrued eo instanti, and that, consequently, the statute of limitation had run as to his claim against the defendant; but, if they found that the money was left with the company as a deposit, no right of action would accrue until there was a demand for the payment of the money and the same was refused; that such demand was not made until the summer of 1888, and, consequently, the statute of limitation would not interfere with the plaintiff's right to recover. The verdict was for the plaintiff. A motion for a new trial was then made upon the minutes upon various grounds, among which was that the verdict was contrary to the evidence. The motion was denied, and an appeal was taken to the general term from the judgment and from the order denying a new trial. The general term reversed the judgment and order, and granted a new trial, with costs to abide the event. In the order of reversal the general term certified that it was held and decided by that court ‘(1) that the verdict ought to have been directed in favor of the defendant, or a nonsuit granted; (2) that the verdict is against the evidence; (3) that the several exceptions taken to the refusal to charge present error.’ The appellant gave the usual stipulation for judgment absolute, and appealed.

Is the order appealable to this court? The appellant insists that it is. The respondent does not dispute this, but claims that the new trial is to be regarded as granted on questions of fact. If so, we are unable to understand how it is appealable. As we have seen, one of the grounds upon which the court certifies that the reversal was based is ‘that the verdict is against the evidence.’ If from this we are to understand that the new trial was granted for the reason that the verdict was against the weight of evidence, then we cannot review the order. Code Civil Proc. § 1338; In re Ross, 87 N. Y. 514-516. But if, as is claimed, it was held by...