Hopkins v. Clark

• Decision Date: 28 February 1899
• Citation: 53 N.E. 27,158 N.Y. 299
• Parties: HOPKINS v. CLARK et al.
• Court: New York Court of Appeals Court of Appeals

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.

Edgar J. Nathan, for respondent.

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. 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.

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, for the reason that the motion was not renewed at the close of the whold evidence. The learned counsel for appellants insists that this is not the rule of practice, and cites a number of cases to sustain his contention. The following are the cases cited: Ernst v. Railroad Co., 24 How. Prac. 97. This case is not in point, as it presented a single exception upon the refusal of the circuit judge to nonsuit upon the whole evidence after the testimony had been given by the defendant, and both parties had rested. Tiffany v. St. John, 65 N. Y. 314. Here the motion was made and denied at close of plaintiff's case; and Mr. Commissioner Dwight, in the commission of appeals, said that the propriety of this ruling could be regarded in the light of the additional evidence taken after the denial of the motion. This same rule is laid down in other cases cited by appellants. Painton v. Railway Co., 83 N. Y. 7;Bank v. Pfeiffer, 108 N. Y. 242, 252,15 N. E. 311; McCotter v. Hooker, 8 N. Y. 497, 503; Jackson v. Leggett, 7 Wend. 377. These cases go to the extent of holding that the defendant could not be heard to insist, on appeal to this court, that his motion to dismiss at the end of plaintiff's case should have been granted, if the defendant's case should have been granted, supplied the defects of plaintiff's case. Other cases are cited by appellants, but are not in point, as in all of them defendant's motion to dismiss was renewed at the end of the case. Plank-Road Co. v. Thatcher, 11 N. Y. 102, 105;Byrnes v. Railroad Co., 113 N. Y. 251, 257,21 N. E. 50;Potter v. Railroad Co., 136 N. Y. 77, 80,32 N. E. 603. In none of these cases was the point distinctly raised as to the effect of defendant going to the jury after his own case is closed, without renewing his motion to dismiss made at the end of plaintiff's evidence. It is doubtless true that this state of the authorities has proved misleading, and tended to create some confusion in the minds of the profession as to the correct practice. It is also true that it may be inferred from some of the cases cited that, if defendants' proofs had not supplied the defects of plaintiff's case,...