Serviss v. McDonnell

• Decision Date: 29 November 1887
• Citation: 14 N.E. 314,107 N.Y. 260
• Parties: SERVISS v. McDONNELL.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 260

14 N.E. 314

SERVISS

v.McDONNELL.¹

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, supreme court, Third department.

Plaintiff, John J. Serviss, owned two notes, each made by John McDonnell, Perry Kline, and Thomas Harvey, who were partners. Upon the death of John McDonnell, the defendant, Lucy McDonnell, formed a partnership with the surviving members of the old firm to carry on the business, and agreed to pay one-third of the debts of the old firm. The plaintiff brought an action against the new firm on the notes, the defendant, Lucy McDonnell, alone answering; and on the trial at the circuit, before a justice of the supreme court and a jury, a verdict was directed for plaintiff upon the whole sum claimed. Upon defendant's appeal to the general term, that court modified the judgment by reducing it one-third, and from the judgment so modified both plaintiff and defendant brought this appeal,-the plaintiff, against the modification; and the defendant, because it was not altogether set at naught.

N. C. Moak, for appellant and respondent.

N. P. Hinman, for respondent and appellant.

DANFORTH, J.

The plaintiff was the owner of two notes, each made by John McDonnell, Perry Kline, and Thomas Harvey, who thereby jointly and severally promised to pay to his order, in one case $500, and in the other $2,000, in one year from April 1, 1873, with interest. The makers constituted the firm of McDonnell, Kline & Co., and the notes were given in consideration of money loaned to them in that capacity. One of the makers, John McDonnell, died, and the complaint alleges that thereafter, and in February, 1878, Lucy McDonnell, Perry Kline, and Thomas Harvey formed a new firm under the same name of McDonnell, Kline & Co., and, in consideration of a transfer to them of the business and property of the old firm, agreed to pay into said new firm, and for the purpose of carrying on said business, certain large sums of money, and to assume and pay all the obligations, debts, and liabilities of said former firm of McDonnell, Kline & Co., among which debts, liabilities, and obligations were the two promissory notes above referred to; that no part of either of said promissory notes has been paid, except that the interest has been paid to April 1, 1887; and for the principal sum, with interest, the plaintiff asked judgment against Lucy McDonnell and Thomas Harvey. The action was commenced February 7, 1884, and the defendant, Lucy McDonnell, alone answered, in substance denying all the material allegations of the complaint, and setting up the alleged cause of action did not accrue within six years. Upon the trial at the circuit, before a justice of the supreme court and a jury, the only proposition seriously litigated was the liability of Mrs. McDonnell, and to establish that parol evidence alone was given. Its force need not be considered, for at a subsequent stage of the trial she put in evidence written instruments which contain the agreement by which alone she can be bound, and the question upon the whole case was finally submitted to the trial judge as one of law. He not only denied the defendant's motion for a nonsuit, but also refused to rule, when subsequently requested by her counsel, ‘that the plaintiff was only entitled to recover against her one-third of the amount due upon the notes,’ and, upon the plaintiff's application, directed a verdict in his favor upon the whole sum claimed, and judgment was entered. Upon the defendant's appeal to the general term, that court modified the judgment by reducing it to one-third, and from the judgment so modified both parties appeal to this court,-the plaintiff, against the modification; and the defendant, because it was not altogether set at naught.

The plaintiff's appeal is so fully met by the reasoning of the learned judge at general term that little need be said. An incoming partner is not, as of...