Porges v. United States Mortg. & Trust Co.

• Decision Date: 17 October 1911
• Citation: 96 N.E. 424,203 N.Y. 181
• Court: New York Court of Appeals Court of Appeals
• Parties: PORGES v. UNITED STATES MORTGAGE & TRUST CO.

203 N.Y. 181

96 N.E. 424

PORGES

v.UNITED STATES MORTGAGE & TRUST CO.

Court of Appeals of New York.

Oct. 17, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Julia W. Porges against the United States Mortgage & Trust Company. From an order and judgment of the Appellate Division (135 App. Div. 484,120 N. Y. Supp. 487) reversing a judgment for plaintiff, entered on a directed verdict, and granting a new trial, plaintiff appeals. Reversed, and judgment of Trial Term affirmed.

Henry Amerman, for appellant.

Charles H. Tuttle, for respondent.

COLLIN, J.

On May 14, 1907, Adelbert E. Hoyt had in his possession a certified check, dated May 10, 1907, drawn on the Chatham National Bank by J. L. Van Sant to the order of himself and by him indorsed: ‘Pay to the order of Julia W. Porges. J. L. Van Sant.’ Hoyt on that date indorsed it thus, ‘Pay to the order of A. E. Hoyt. Julia W. Porges,’ and thereunder, ‘A. E. Hoyt,’ and deposited it to his account with the defendant, which placed the amount thereof to his credit and collected the check from the Chatham National Bank. This plaintiff, alleging that she was the owner and entitled to the possession of the check, and that defendant converted it to its own use, seeks in this action to recover the resulting damages.

At the close of plaintiff's evidence in chief, the defendant's counsel moved upon specified grounds to dismiss the complaint and excepted to the denial of the motion. At the close of the entire evidence he renewed the motion with the grounds, stating in reply to the inquiry of the trial judge that the motion was not for a direction of a verdict and took an exception to its denial. He then asked to go to the jury on the question of the laches of the plaintiff in notifying the defendant of the alleged forgery of her indorsement of the check, which request the court granted. He asked the court to submit to the jury the question as to whether a power of attorney from the plaintiff to Hoyt, which was in evidence, gave him power to make the indorsement. This the court refused, and the defendant excepted to the ruling. The plaintiff's counsel asked the court to direct a verdict for the plaintifffor the amount demanded in the complaint, to wit, $4,000 and interest thereon from May 14, 1907 . The court denied such request. Two questions were submitted to the jury: ‘First. Did the plaintiff, or her representative, Mr. Amerman, after she or her said representative had discovered the alleged forgery, exercise due diligence in notifying the defendant of the fact that she claimed that the indorsement of her name on the check in suit had been forged. Second. If, in answer to the preceding question, the jury finds that the plaintiff or her representative failed to exercise due diligence in notifying the defendant of the alleged forgery, then, did such delay damage the defendant in any amount, and, if so, in what amount?’ The jury answered the first question ‘No,’ the second question ‘$500,’ and the court thereupon said: ‘Now, gentlemen of the jury, by direction of the court, you will find a verdict in favor of the plaintiff for the sum of $3,860.’ To this direction the defendant did not take an exception. In accordance therewith the jury rendered the verdict, which was for the principal of the check and interest, minus the $500 the damage to the defendant, as found by the jury, because of the plaintiff's delay in notifying defendant of the alleged forgery.

[1] The defendant did not move for a new trial, but appealed to the Appellate Division from the judgment rendered upon the verdict. The Appellate Division in reaching its determination was limited to an examination of errors of law raised and pointed out by exceptions taken by the defendant during the trial of the action, and upon them the new trial was granted (Allen v. Corn Exchange Bank, 181 N. Y. 278, 73 N. E. 1026), and to them our review is limited. Wangner v. Grimm, 169 N. Y. 421, 62 N. E. 569.

[2] The defendant waived by introducing evidence in the defense the exception taken by it to the refusal of the court to dismiss at the close of plaintiff's evidence in chief the complaint. Bopp v. New York Electric Vehicle Transportation Co., 177 N. Y. 33, 69 N. E. 122.

The motion of defendant at the close of the entire evidence to dismiss the complaint was upon the grounds ‘that no cause of action has been proven against this defendant, the particular defect in the proof being that the plaintiff has failed to prove title to the entire proceeds of the check, and the immediate right to the possession to the check and the entire proceeds on May 14, 1907.’ Such being its grounds, it was equivalent to and may be treated as a motion for a nonsuit. In an action at law, after the parties have had the opportunity of exhausting their evidence and have rested, the motion to dismiss the complaint is improper, and, when used by a defendant, must be deemed, as its form and grounds indicate the intention of counsel, a motion for a nonsuit or a direction of a verdict. Wheeler v. Ruckman, 51 N. Y. 391;Dillon v. Cookcroft, 90 N. Y. 649.

[4] The exception of the defendant to the denial of the motion that the plaintiff be nonsuited raised the question whether, admitting all the facts presented and giving to the plaintiff the advantage of every inference that could properly be drawn from them, there was any evidence to support the plaintiff's cause of action, and its consideration necessitates the statement of the following facts: In April, 1907, the plaintiff, a resident of New York City, owned the properties known as numbers 218 and 220 West Twenty-First street in New York City. A mortgage thereon was in process of foreclosure, and it came to pass that Hoyt, who through the 15 years last prior had been a friend of the plaintiff and was a clerk in the office of a dealer in real estate, undertook to aid her. To that end he obtained from her on April 25, 1907, an instrument in writing reading as follows: ‘Apr. 25, 1907. For and in consideration of one dollar, to me in hand paid, the receipt whereof is hereby acknowledged, I, Julia W. Porges, individually and as Executrix of the late John H. Porges, do hereby authorize Adelbert E. Hoyt to dispose of my property No. 218 and 220 West 21st Street, Borough of Manhattan, City of New York, at such price and under such conditions as he may see fit and to accept either cash or other property or both, and take any property subject to existing encumbrances (if any) on said property so taken in exchange, and I hereby give to said Hoyt my full power of attorney to sign contracts and to execute any and all papers in connection therewith and also full authority to sign, sell and manage any property so accepted in exchange and to pay out any necessary money in settlement of interest, taxes, water, salaries or other bills or court costs and commissions for the sale of any of the said properties, the same as if I did so myself, it being understood that the said 21st Street property is now under foreclosure, and money must be paid in settlement in order to deliver deed of same, and that I shall lose my entire equity in same unless said Hoyt can effect some sale or exchange whereby some benefit may accrue, and therefore I give unconditional and unlimited authority to him to do anything he deems advisable with said property, and any money that must be paid in excess of what may or may not be received in said transaction I will pay to him in case when called upon without accounting or defense of any character. Julia W. Porges.’ On May 10, 1907, Hoyt, acting in behalf of the plaintiff under this power of attorney, and Alexander D. Duff and J. L. Van Sant, executed an exchange of properties, and as a part of that transaction there was delivered to Hoyt in payment of the excess value of the plaintiff's properties two checks, the one for $2,772.83 payable to the order of the plaintiff or...