Citation Numbers: 13 Abb. Pr. 1
Judges: Brady
Filed Date: 7/15/1861
Status: Precedential
Modified Date: 2/3/2022
—The defendant in this action was sued as a stockholder of the United States Gutta Percha Belting and Packing Company, who had become liable to pay the plaintiff’s demand against that company in consequence, it was alleged, of its omission to comply with certain requirements of the statute. The complaint alleged that the defendant was a stockholder of that company. The defendant, in his answer, admitted that he was a stockholder as thereafter mentioned, and he then denied any allegation in the complaint not answered. The defendant, for a further answer, then averred that the stock held and owned by him was issued by the company in payment for property purchased by its trustees and necessary for their business, and that it was full paid stock, not liable to any further calls or payments. On the trial the plaintiff gave no evidence as to the defendant’s ownership of the stock held by him, and when he rested his case the defendant’s counsel moved to dismiss the complaint upon that ground, and others which he supposed to be fatal to the plaintiff’s right to recover. When the' motion was made, as it appears from the return, the plaintiff offered to produce additional evidence of the defendant’s ownership, and applied for permission to resume his case,
The difficulty which is presented in this case, however, arises from the observation of the justice, that he thought the defendant entitled to his motion to dismiss the complaint on other grounds than the one just considered. How is this declaration to be construed ? If a refusal to receive the additional evidence, then he erred. The right to give further evidence was absolute before the motion was decided. The cases in which it has been held to be matter of discretion, are those in which the evidence has been given on both sides and the cases closed. (Edwards a. Sherratt, 1 East, 604 ; Alexander a. Byron, 2 Johns. Cas., 318 ; Mercer a. Sayre, 7 Johns., 306.)
The mere fact of a plaintiff resting, cannot be regarded as a bar to his right to furnish further proof; and, indeed, it may be said that his case cannot be regarded as closed, where the defendant has given no evidence, as long as he has testimony to give upon a fact not completely established or made out ;prima facie, and which is essential to his recovery. But assuming it to be a matter of discretion, then it must be said, in this pase, that the discretion was not exercised ; or, if exercised, it should be considered that additional evidence was produced. The justice seems to have conceded that if the second ground for a nonsuit was removed, the other objections would be fatal,
Upon the facts stated, however,, the conclusion should be, that the complaint was dismissed in the court below upon the other grounds suggested by the defendant’s counsel, and upon the assumption, therefore, that-the additional proof offered would have removed the objection as to the kind of stock owned by the defendant. Having arrived at this result, it becomes necessary to see whether any of those grounds were tenable. The first is, that it did not appear that the judgment had been docketed in Queen’s county, or that' any valid execution had been issued thereon. This was not well taken.
The clerk of Queen’s county testified that a transcript of the judgment •mentioned'in the complaint had been received b.y him and was docketed, and he furnished a copy of the transcript so docketed. There was no evidence affecting the official character of the transcript, and no question asked the clerk affecting its authenticity. The -testimony was therefore sufficient, prima facie, to put the defendant to his proof.
1 The next reason assigned why the complaint should be dismissed, is, that the debt upon which the judgment was recovered, was not contracted to be paid within a year. This objection cannot be sustained. The debt contracted was the rent agreed to be paid for the use of -the premises in Liberty-street, for the period of one year, and in quarterly payments. It was, therefore, not a debt which was contracted not to be paid within a year. The remaining objection was that it appeared by the complaint that the action was brought directly upon the judgment itself, and not to charge the defendant with the debt upon
Hilton, J.—I concur in reversing this judgment, upon the ground that .the justice improperly refused to allow the plaintiff’s offer, after he had rested his case, but before the complaint had been actually dismissed, to give additional evidence establishing the defendant’s liability. (Mercer a. Sayre, 7 Johns., 306.)
The offer made called upon the judge- to exercise a discretion respecting it, and it would have been a sound discretion, under the circumstances disclosed in this case, to have admitted the proof.
■ Judgment reversed.
Present, Daly, Brady, and Hilton, JJ.