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Opinion by HUNT, Ch.J.

tiff for the whole amount of the note in suit; holding that as the draft and note set up by the Defendant were made by the husband in his own name, they were primâ facie on his own account, and that there was no evidence to explain or contradict this primâ facie showing; and that as the Defendant held the affirmative, his claim could not be allowed. Mrs. Barnum was subpoenaed by the Plaintiff, and attended at Rochester, where the case was tried, but was not called. The Defendant alleges that he had not transacted any of the business with her personally, and did not know what she would testify to; but supposed from her position, and from the fact of her being subpoenaed by the Plaintiff, that her testimony would corroborate that of her husband, and would prejudice the defence.

Judgment was entered Feb. 15, 1861, and exceptions to the report were filed in February, 1861. In January, 1862, the Defendant claims to have discovered that she would testify that she never considered the note in suit as her property, and never claimed any interest in it or exercised any control over it, but that it was made for the benefit of her husband, and she always considered it his absolutely, and he was at liberty to use it as he chose, without any interference of hers. She supposed it was paid in full, or nearly so, until a short time before it was sued in her name, when her husband told her it was not paid. The affidavit of Mrs. Barnum forms a portion of the papers.

On the 3d of March, 1862, the motion for a new trial, on the ground of newly-discovered evidence, was heard upon the affidavits and case now presented, "and opposing affidavits on the part of the Plaintiff," and was then denied. From this order the Defendant appealed to the General Term, where the same was affirmed.

He now appeals to this Court.

John H. Reynolds for Appellant.
George F. Danforth for Respondent.

HUNT, CH.J.-No question of law is involved in this order, and it is not appealable to this Court. An order granting a new trial

Opinion by HUNT, Ch.J.

on the ground of newly-discovered evidence, surprise, misconduct of jurors, or the like, has always been considered as addressed to the discretion of the Court (Selden v. The Del. & Hud. Canal Co., 29 N. Y. R. 634; Young v. Davis, 30 N. Y. 134; Sherman v. Felt, 2 Com. 186; see also King v. Platt, 37 N. Y.*; 34 How. Pr. R. 26, where all the cases are examined). In such cases this Court never attempts to review the action of the Court below. In Adams v. Bush (2 Abb. N. Y. 104), the question was discussed, but no conclusion was reached by the Court; and the later case of King v. Platt gives the true rule which should govern the decision. It is discretionary in its nature, and not the subject of an appeal to this Court. If in our power to review the discretionary action of the Court below, we should not have felt disposed to exercise that power in the present case. In the first place, we have not the facts on both sides before us.

The Defendant has presented his affidavit, but the "opposing affidavits," which were before the Court below, are not among the papers. We are entirely ignorant of their contents. In the next place, the evidence is cumulative in its character. The witness Barnum swore to one state of facts, and the Defendant, as a witness, swore to another and different state of facts. The facts now desired to be proven by Mrs. Barnum to sustain the Defendant, and to impeach her husband, are upon the same point, of the same general nature, and come in aid of the testimony given by the Defendant. They are intended to show that the note in suit belonged to her husband, as was insisted by the Defendant, and not to her, as was insisted by the Plaintiff. They were well known to the wife at the time of the trial, and known to the Defendant to be known by her. He then supposed her to be in the interest of the Plaintiff, and to have the same purpose with her husband, and that she would sustain his testimony. He therefore omitted to call her. He now ascertains that she will give evidence to sustain his view of the case, and he therefore asks for a new trial, on the ground of newly-discovered evidence. This will not do. No verdict could stand if this should be held as

* 4 Transcript Appeals, p. 19.

Opinion by HUNT, Ch.J.

good cause for setting it aside (People v. Superior Court, 10 Wend. 285; Peck v. Hiler, 30 Barb. 655). And lastly, the delay of more than a year after the report in making the application, is too great (same auth.).

The judgment and the order appealed from should be affirmed, with costs.

All concur.

Judgment affirmed, and appeal dismissed.


State Reporter.

Opinion by MILLER, J.

and the officers of the bank in reference to the nature of the pledge, and some conflict between the testimony of Champlin and Palmer as to the conversation in the bank, and the alleged pledge of the stocks; and according to Champlin's version, no additional pledge of the stocks was then made.

It also appeared that the assignment was made on the sixth day of March, 1857, before two of the notes of Roberton & Dustan were due, and provided for the payment of the partnership debts first, and embraced the stocks in question; and that the stocks were sold by the Defendant, and the sum of $23,800.16 was realized, after the assignment was executed.

The referee found, as a matter of law, that there was no issue under the pleadings as to the title of the Plaintiffs to the stocks in question, subject to any valid hypothecations thereof by Champlin or the Plaintiffs. That by the agreement made between Christopher Champlin and the Defendant, on the 27th of February, A.D. 1857, said Champlin made a further pledge to the Defendant of the stocks then in its hands, to secure the payment of the draft drawn by him on C. E. D. Wood, for $3,000. That the Defendant was entitled to be paid the loans made to Champlin, for which the stocks were pledged by a writing, the draft of $3,000, and a loan of $3,000 made to the Plaintiffs after the assignment, and reported a balance in favor of the Plaintiffs of $8,759.61. Various exceptions were taken to the decisions of the referee upon the trial, and to his report, all of which, so far as material, are noticed in the opinion.

A judgment was entered upon the referee's report, and the Defendant appealed to the General Term of the Superior Court of the city of New York, and a new trial was ordered.

The Plaintiffs, having made and filed the proper stipulation, appealed to the Court of Appeals.

William M. Evarts for Appellant.
Everett P. Wheeler for Respondent.

MILLER, J.-I think that it must be assumed in this case that the assignment made by Champlin and Wood was a valid transfer

Opinion by MILLER, J.

of Champlin's property, as between him and the assignors, and that the Plaintiffs were entitled to maintain this action, even if it be conceded that the validity of such an assignment might be questioned by the creditors who were in a position to contest it in an action brought for that purpose.

By the assignment, the title to the stocks passed and became vested in the Plaintiffs; and the Defendant was liable to account to the Plaintiffs the same as it would to Champlin, their assignor, prior to the time when the assignment was actually made and executed. In the subsequent sale and disposition of the stocks, the Defendant acted by virtue of the authority, and with the assent of the Plaintiffs, and as their bailee.

The accountability of the Defendant was in no respect changed thereby, and the Defendant had only a right to claim, as a charge against the proceeds arising upon the sale of the stocks, such amount as would have been necessary for the Plaintiffs to have tendered on the day of the assignment, with interest and expenses, to cancel, pay up, and discharge the claim of the Defenddant, as the pledgee of the stocks, and not beyond that sum. The stocks being thus pledged for a specific and particular purpose by the assignors, precludes the idea of a set-off as against the assignees, and no such question arises. If any legal set-off had existed, independent of the pledge of the stocks, it would only be valid against moneys realized upon their sale; and when they were sold, the title to the moneys had passed to the Plaintiffs; and the claim of the Defendant was against the Plaintiff's assignors. At the time of the assignment, no debt was due from the bank to Champlin, and it never became a debtor of Champlin. The debt was due from the Defendant to the Plaintiffs, and was never due to their assignors; and to the Plaintiffs alone was the Defendant liable to account.

The question arises, and it is the principal question to be determined in this case, what was the extent of the pledge of the stocks made by Champlin, the Plaintiff's assignor, to the Defendant?

The referee has found that, by the agreement between Cham

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