Hopkins v. Clark

CourtNew York Court of Appeals
Writing for the CourtBARTLETT
Citation53 N.E. 27,158 N.Y. 299
Decision Date28 February 1899
PartiesHOPKINS v. CLARK et al.

158 N.Y. 299
53 N.E. 27

HOPKINS
v.
CLARK et al.

Court of Appeals of New York.

Feb. 28, 1899.


Appeal from supreme court, appellate division, First department.

Action by Hency C. Hopkins against James F. A. Clark and others. A judgment in favor of plaintiff, and an order denying a new trial, were reversed by the general term of the court of common pleas. 36 N. Y. Supp. 456. Afterwards a reargument was granted by the appellate division (37 N. Y. Supp. 1146), and on reargument the judgment was affirmed (40 N. Y. Supp. 130). Defendants appeal. Affirmed.


Wallace Macfarlane, for appellants.

158 N.Y. 300]Edgar J. Nathan, for respondent.
[158 N.Y. 301]BARTLETT, J.

The defendants are Boston stockbrokers, and the plaintiff is their customer, residing in Philadelphia. The transactions involved in this suit took place in February, 1893. The defendants on the 17th of February, 1893, purchased for the account of plaintiff $10,000, par value, Reading Railroad third mortgage bonds, at 42. At the time this purchase was made, plaintiff had an open account with the defendants, showing a balance due him of $2,737.41. This action was brought to recover that balance, ignoring the purchase of the Reading bonds, on the theory that it was unauthorized and duly repudiated. The action is defended on two gounds: First, that Campbell, a member of the defendant's firm, was given discretionary authority by plaintiff to make such purchases on his account as he (Campbell) thought would be profitable; second, that the Reading bond purchase was subsequently ratified by Plaintiff. There were but two witnesses sworn,-plaintiff in his own behalf, and defendant Campbell for the defense. [158 N.Y. 302]The proofs were supplemented by a number of letters that passed between the parties about the time of this transaction. The conflict in the evidence was unusally sharp, and the case was submitted to the jury, who found for the plaintiff. The trial was in the court of common pleas for the city of New York, and the general term affirmed the judgment entered on the verdict just prior to the time when that court ceased to exist. A motion was made for reargument in the supreme court, appellate division, First department, which was granted. On the reargument the judgment was affirmed; Mr. Justice Rumsey writing the opinion, and Justices Patterson and Ingraham concurring; Mr. Justice Williams writing the dissenting opinion, and Presiding Justice Van Brunt concurring. The dissenting justices were of the opinion that the verdict was against the weight of evidence.

[53 N.E. 28

The first point urged by appellants on this appeal is that the evidence does not support, or tend to support, the verdict on which the judgment was entered. The course of the trial was this: At the end of the plaintiff's case, the defendants moved for a dismissal of the complaint. The court denied the motion, and the defendants excepted. The defense then put in their evidence, and the case was submitted to the jury, without a motion of any kind being made on behalf of the defendants. It is now insisted that the question of law that there is no evidence to support the verdict is before the court, by reason of defendants' exception to the denial of the motion to dismiss at the end of plaintiff's case. We are of opinion that this exception is not available here,...

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16 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Byrd v. Blessing, 11 O. St. 364; Stockstill v. R. Co., 24 O. St. 83; N. P. R. Co. v. Mares, 123 U.S. 713; Hopkins v. Clark, 158 N.Y. 304, 53 N.E. 27; Iron Co. v. Brown, 171 N.Y. 488, 64 N.E. 194; Lynch v. Johnson, 109 Mich. 640, 67 N.W. 908; Chicago &c. R. Co. v. Wedel, 144 Ill. 9, 32 N......
  • Sigua Iron Co. v. Brown
    • United States
    • New York Court of Appeals
    • June 10, 1902
    ...and puts in evidence on his part, he thereby waives the exception to the refusal to nonsuit when the plaintiff rested. Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27;Littlejohn v. Shaw, 159 N. Y. 188, 191,53 N. E. 810;Wangner v. Grimm, 169 N. Y. 421, 427,62 N. E. 569. It is true that the defe......
  • Carpenter v. Taylor
    • United States
    • New York Court of Appeals
    • October 2, 1900
    ...to judgment.’ See, also, Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 52 N. E. 650, and the later case of Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27, where the authorities upon this branch of the practice were considered, and the reason for the rule adopted by this court given. 2. T......
  • Cincinnati Traction Co. v. Durack
    • United States
    • United States State Supreme Court of Ohio
    • May 19, 1908
    ...which courts are created to require the review of an error which, if declared, would not justify a reversal.’ In Hopkins v. Clark et al., 158 N. Y. 299, 53 N. E. 27, the Court of Appeals adds its declaration that, ‘when a defendant, at the close of the plaintiff's evidence, moves to dismiss......
  • Request a trial to view additional results
16 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Byrd v. Blessing, 11 O. St. 364; Stockstill v. R. Co., 24 O. St. 83; N. P. R. Co. v. Mares, 123 U.S. 713; Hopkins v. Clark, 158 N.Y. 304, 53 N.E. 27; Iron Co. v. Brown, 171 N.Y. 488, 64 N.E. 194; Lynch v. Johnson, 109 Mich. 640, 67 N.W. 908; Chicago &c. R. Co. v. Wedel, 144 Ill. 9, 32 N......
  • Sigua Iron Co. v. Brown
    • United States
    • New York Court of Appeals
    • June 10, 1902
    ...and puts in evidence on his part, he thereby waives the exception to the refusal to nonsuit when the plaintiff rested. Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27;Littlejohn v. Shaw, 159 N. Y. 188, 191,53 N. E. 810;Wangner v. Grimm, 169 N. Y. 421, 427,62 N. E. 569. It is true that the defe......
  • Carpenter v. Taylor
    • United States
    • New York Court of Appeals
    • October 2, 1900
    ...to judgment.’ See, also, Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 52 N. E. 650, and the later case of Hopkins v. Clark, 158 N. Y. 299, 53 N. E. 27, where the authorities upon this branch of the practice were considered, and the reason for the rule adopted by this court given. 2. T......
  • Cincinnati Traction Co. v. Durack
    • United States
    • United States State Supreme Court of Ohio
    • May 19, 1908
    ...which courts are created to require the review of an error which, if declared, would not justify a reversal.’ In Hopkins v. Clark et al., 158 N. Y. 299, 53 N. E. 27, the Court of Appeals adds its declaration that, ‘when a defendant, at the close of the plaintiff's evidence, moves to dismiss......
  • Request a trial to view additional results

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