Meyer v. . Cullen , 54 N.Y. 392 ( 1873 )

It seldom happens, as it did in this case, that the plaintiff is nonsuited as to one-half of his claim and the cause continued to a recovery as to the balance. This sort of proceeding is quite anomalous, and, as the practice was adopted on the application of the counsel for the defendant, he could not ordinarily be permitted to question its propriety. When, at the close of the evidence on the part of the plaintiff, it was moved that the complaint be dismissed as to the second cause of action, relating to the "Cumberland Saltpeter Company," on the ground that there was no proof to support that cause of action, and when the court granted the motion, saying that "it did not think there was any evidence to support this count," the defendant had the right to suppose that all the evidence relating to the saltpeter company stock was out of the case. The learned judge, at the trial, concluding to send the case to the jury upon another claim made by the plaintiff, it so happened that the counsel for the plaintiff, in his address to the jury, sought to make use of the evidence relating to the saltpeter interest, to show a fraud in the defendant, contemporaneous with an alleged fraudulent transfer of stock in the coal company, as bearing on the fact of fraud in the latter transaction. To this the defendant objected, and the objection was overruled. The defendant then offered to prove that, in the transfer of the saltpeter interest, he had committed no fraud, and had made no misrepresentations, and, generally, that the transaction was free from any objection. This evidence was rejected, and the judge left it to the jury to consider what effect on the question of fraud the evidence, in respect to the saltpeter claim, had upon the allegation of fraud in the transfer of the stock in the coal company, and exceptions were duly taken by the defendant to all these rulings.

I think the cause should be retried. It is very obvious that the defendant was misled, to some extent perhaps by his own fault; but, in a proceeding so novel as this, such an error should not be regarded as fatal to his rights. It is urged that the reception or rejection of the evidence offered by the defendant, during the summing up of counsel to the jury, rested in the discretion of the judge. It indeed is, to a large extent, such a question, but the discretion is not arbitrary but judicial. An abuse of judicial discretion has always been, and always ought to be, the subject of review in some form.

An abuse of discretion, in a legal sense, does not by any means imply that the judge committing it was actuated by any improper motive. It is quite likely to happen in the hurry of a trial at circuit; and without careful consideration a plain error of law may be committed, resulting to the prejudice of a party, which the judge committing the error would, upon further reflection, be most happy to correct if he could have the opportunity. In such case I have no doubt but that an appellate court may do justice. In earlier times it has been said that in such a case an exception would not lie; that followed from the rigors of the common law upon mere questions of form. The remedy was said to be by motion for new trial, and not by exception. In our present system I think the form of the remedy is quite immaterial; and if injustice has been done, the proper remedy to redress the wrong must, if possible, be applied by any court having the power. I think we may correct what seems to have been a clear error of law.

But if apparently obsolete rules are to prevail as to practice and form, the error in this case may still be reached without the violation of any established rule of law or practice. After having held that the saltpeter company claim was out of the case, and that there was no evidence to sustain fraud in that transaction, and dismissing the complaint in respect to it, I think it was plain error for the judge to say to the jury that they might still consider the evidence on that branch of the case, to see if there was any fraud in the transaction, and if they found any, it might be considered in connection with any supposed fraud in respect to the transfer of stock in the coal company. To this direction it is quite certain an exception will lie; and that it was well taken in this case I have no doubt.

In any and every aspect of the case I think there should be a new trial.

All concur.

Judgment reversed.