Beebe v. Roberts

3 E.D. Smith 194

• Court: New York Court of Common Pleas
• Decided: July 15, 1854
• Status: Published

Opinion

Ingraham, First J.

We have on several occasions expressed the opinion that the 366th section of the Code was not applicable to a case where the defendant appeared on the return of the summons, but did not appear on the adjourned day of trial. That section provides for. opening a judgment by default only where the defendant failed to appear before the justice. In this case the defendant did appear, and by successive adjournments the case was postponed. On the last adjournment the defendant forgot to attend, and his default was taken and judgment rendered. It. can never be admitted to be a good excuse that the defendant forgot to attend to a cause on the adjourned day. If so, defendants will be apt to present such an excuse very frequently, and a judgment by default will become a more uncertain remedy than a judgment upon trial. Even if the 366th section was sufficient to cover such a case, the excuse that the defendant forgot to attend court on the adjourned day is not a sufficient one.

Upon the merits, I think the evidence was sufficient. The agent was to pay $50 on delivery of the deed for certain lots purchased by the defendant. The money was payable on the delivery of the deed within thirty days from date.

I am inclined to think that the words within thirty days from date were not a part of the condition on which the money was to be payable, but are to be construed as specifying the time at which the defendant was bound to receive the deed under the contract with the sellers. Even if those words were a part of the condition, still the return does not show that the delivery was after the thirty days; but on the contrary, that the deed was tendered (in the language of the testimony as given), “ in pursuance of the agreement between the parties.” In the absence of any defence, I think this makes out a prima, faoie case of compliance with the agreement.

The deed was refused, but this does not deprive the plaintiff of the right to recover. The acceptance of the deed was no part of the condition. The mere delivery was all that was required. The tender of the deed was all that was necessary, and if the defendant refused to receive it, he could not by that act defeat the plaintiff’s claim.

We cannot look at an affidavit which contradicts the justice’s return; the only remedy in such a case is by applying for a further return. If the return is incomplete this is the only way to correct the error. If we were to take affidavits as sufficient for such a purpose, the appeal would be decided not on the return but on the affidavits. .

• Affidavits can only be received in two cases, first, where an error in fact in the proceedings, not affecting the merits and not within the knowledge of the justice has been committed; and second, where the defendant has failed to appear, and seeks by the affidavits to excuse his default. In all other cases the court can only be governed by the return.

The result of this case may operate harshly to the defendant’s interest, but we must be governed by general rules in the hearing of these appeals, and although the enforcement of them may seem hard in individual cases, still the advantage of settled rules of construction firmly adhered to will be most satisfactory to suitors. The judgment should be affirmed.

Woodruff, J.

The contract signed by the defendant admitted the- fact of a purchase by him, and that commissions were due thereupon to Beebe & Hallet, payable on the delivery of the deed, within thirty days. This is the fair interpretation of the language of the instrument.

The witness Weeks testifies that he tendered the deed to the defendant. He does not say, in terms, that he made the tender within thirty days, but that he did so in pursuance of the agreement between the parties. No other parties had been named but the defendant and Beebe & Hallet, and no agreement had been spoken of except the agreement read in evidence. We cannot say that the justice erred in finding that this evidence fairly imported that the tender was made in compliance with the condition upon which the fifty dollars were to be payable.

There is some reason to believe, upon the facts stated in the defendant’s affidavit, that injustice has been done. But, aside from the question whether this court have power, under § 366 of the Code, to order a new trial, where the defendant does, in fact, “ appear before the justice,” put in his answer, and attend on several successive days, and consent to adjournments, and finally fails to attend on the trial, in regard to which question a decision is not necessary; we do not think the mere fact that the defendant “ forgot the time of trial,” unaccompanied with any circumstances explanatory of or excusing his forgetfulness, ought to be regarded as “satisfactorily excusing his default,” within the meaning of the legislature. It seems to us that such an indulgence would he open to so much abuse that it ought not to be allowed as a precedent. The judgment must, I think, be affirmed.

Daly, J., concurred in affirming the judgment.

Judgment affirmed.