Duryea v. Vosburgh

• Decision Date: 15 April 1890
• Citation: 24 N.E. 308,121 N.Y. 57
• Parties: DURYEA et al. v. VOSBURGH.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 57

24 N.E. 308

DURYEA et al.

v.VOSBURGH.

Court of Appeals of New York.

April 15, 1890.

Appeal from supreme court, general term, second department.

The plaintiffs brought this action against the defendant to recover some $6,000, and in the complaint it is alleged, in substance, that the defendant and one Peck were copartners in business in the city of Brooklyn, and that the plaintiffs, desiring to purchase Peck's interest, employed the defendant as their agent to purchase the same at the lowest cash price, which he agreed to do; that he stated to the plaintiffs subsequently that such lowest cash price was $51,750; and that they, relying upon such statement, paid that sum to Peck. Subsequently the plaintiffs allege they discovered that Peck had really sold his interest in the partnership for $45,750, and that the difference between the sums had been received and wrongfully appropriated by the defendant to his own use. The defendant put in an answer denying the allegations of the plaintiffs. Upon the trial evidence was given by both parties upon the question of whether the defendant acted as the agent of the plaintiffs in the transaction resulting in the sale of Peck's interest in the copartnership to them, and there was no exception taken to the judge's charge that the whole case turned upon the question whether Vosburgh, the defendant, was constituted the agent of the plaintiffs to buy Peck's interest, and that, if he was, then the plaintiffs were entitled to recover the sum of $6,000, with interest. The jury found a verdict for the defendant, and upon the rendition of the verdict the plaintiffs made a motion to set it aside as against the evidence, and for a new trial on the minutes of the judge. That motion was denied. Judgment having been entered, an appeal was taken to the general term from it, and also from the order denying the plaintiffs' motion for a new trial upon the judge's minutes. The general term affirmed the order and judgment, and judgment of affirmance was duly entered. The plaintiffs then appealed to this court from the judgment of affirmance, and also from the order affirming the order denying the motion for a new trial upon the minutes, and in the notice of such appeal the plaintiffs stated their intention to bring up for review on this appeal the said order so denying such motion for a new trial.

N. C. Moak, for appellants.

Esek Cowen, for respondent.

PECKHAM, J., ( after stating the facts as above.)

The counsel for the plaintiffs contends that this court has the power, in a case like the present, to review the determination of the general term in affirming the order denying the motion for a new trial, made upon the judge's minutes, which motion was made upon the ground that the verdict was against the evidence. He claims that the motion on such ground raised a question of law, and that, if it should have been granted, the courts below have made an error in the decision of a question of law which this court should correct. He cites, as an authority for his proposition, Walker v. Spencer, 86 N. Y. 162, and certain sections of the Code of Civil Procedure. This question has, as we think, been already decided by this court, and against the views now urged by the counsel for the appellants. But inasmuch as appeals from this kind of an order are still frequently taken in connection with an appeal from the judgment, and there seems to be some uncertainty prevailing in the profession as to the practice which should be followed in such case, we have deemed it proper to restate our views at this time. The denial of a motion for a new trial, made on the ground stated, is not the subject of an exception, and, if it be competent for this court to review the decision of that question by the general term, it follows, of course, that it reviews a question of law without any exception having been taken, which is contrary to its uniform practice, and the power to do which has been denied. See Oil Co. v. Insurance Co., 79 N. Y. 506. In one instance provision is made for a review by this court of the determination of the lower court without an exception having been taken, and that is where a verdict has been ordered subject to the opinion of the court at general term. By virtue of section 1339 of the Code, an exception is not necessary in such case to enable this court to review the determination of a question of law arising upon the verdict so ordered. As there was no motion made on the trial of this cause to direct a verdict for the plaintiffs, and of course no exception taken, if the plaintiffs are correct, they would be thus enabled to raise a question on an appeal from the order which they could not raise on appeal from the judgment because of the absence of an exception. We think the plaintiffs are in error in their claim. In the case cited from 86 N. Y. 162, the appeal by the defendant was from the order of the general term denying his motion for a new trial, made under section 1001 of the Code. That section permits such a motion to be made at general term upon exceptions taken to rulings of law made upon the trial, and this court reviews the decision of the general term upon such motion, by virtue of section 190, subd. 2. But by the very language of the Code providing for the making of a motion for a new trial at the general term, in cases where an interlocutory judgment has been entered, such motion must be founded upon exceptions, and, of course, if none were taken, no such motion could be entertained at the general term, and no review could be had here.

Section 1350 does not confer the jurisdiction claimed. That section makes provision for an appeal to this court from a final judgment in cases where an interlocutory judgment had already been entered and affirmed at general term, or after it had refused a new trial applied for to it in the first instance, or upon appeal from special term. If an appeal is taken to this court from the final determination of the general term, the determination of that court affirming the interlocutory judgment, or refusing the new trial, may be reviewed at the election of either party. But the review in this court, thus provided for, must be confined to exceptions taken, and without them no questions of law reviewable here can arise. The plaintiffs have no exception to reach this question. There has been no interlocutory judgment, and hence provisions for a review of such a judgment upon appeal from a final one do not apply.

Nor does section 1337¹ lend any aid to the plaintiffs' contention. That section simply states the questions which may be brought up for review by an appeal to this court from a final judgment, or from an order granting or refusing a new trial in an action, or from an order affecting a substantial right, made in a special proceeding or upon a summary application after judgment. We do not think that section enlarges the jurisdiction of this court so as to permit us to review, upon appeal from its judgment, the decision of the general term upon appeal from an order denying a motion for a new trial on the judge's minutes in an action tried by a jury. The meaning of section 1337 must be that this court can review every question affecting a substantial right, and not resting in discretion, which was determined by the general term, provided the exceptions rendered necessary by other sections of the Code have been duly taken. An order such as is under consideration here is not made appealable to this court by virtue of this section. The case of Derleth v. De Graff, 104 N. Y. 661, 10 N. E. Rep. 351, while not exactly similar, (because the appeal to this court from the order was taken before the entry of the judgment of affirmance,) is still an authority for the view now taken. We there held that the unsuccessful party at the general term could not appeal directly to this court from the order of the general term affirming the order of the general term denying the motion for a new trial on the minutes, even though such appeal should have been taken...