Milbank v. Jones

2 Misc. 503, 51 N.Y. St. Rep. 616

• Court: The Superior Court of New York City
• Decided: February 15, 1893
• Status: Published

Opinion

Sedgwick, Ch. J.

The new question in the case refers to the right of the plaintiff to prosecute the action individually, and also as administratrix. The plaintiff had taken proceedings upon petition for leave to he made plaintiff as to her individual interest, and also as administratrix of the former plaintiff, then deceased. No supplemental complaint was served. On the trial, the counsel for defendant made objection that the cause of action in the plaintiff individually could not be united properly with the cause of action in her as administratrix, and also that there was no proof of her personal interest, or that she was administratrix. It will be seen that there was no issue as to these facts. No supplemental complaint had been served or required to be served. Probably, the defendant, if he wished, could have procured a direction that such a complaint be served. Indeed, the plaintiff’s petition asked leave to serve a supplemental complaint. On these facts, it must be held, on the cases cited by the counsel for plaintiff, that the decision in the proceedings upon the motion is an adjudication as to the question of- law and of fact then raised, and that if there were error in the decision, in the absence of a supplemental complaint, it was to be corrected by appeal. The ruling of the court below on this point should not be reversed.

The complaint alleges that the defendant, as trustee for the plaintiff, received $5,000 in trust; that, by the terms and conditions of the trust, it was provided, and said trust was upon the express condition, that the same might be terminated by the plaintiff on or after July 10, 1866, at his election.

To prove this, the plaintiff gave in evidence the following agreement, in writing: “ Received of R. W. Milbank, $5,000, and also certificates for 250 shares, etc., the said money and stock to be returned to said Milbank in ease ” a certain resolution “ shall not he passed and take effect before the 10th July next.”

There was an objection to this, by defendant’s counsel, that it did not sustain and was not the cause of action made by the complaint. The cause of action in the complaint was conditioned by the election of the former plaintiff. On the other hand, the agreement in testimony was the passing and the taking effect of a resolution before the tenth of July. It was urged that the defendant had had no notice to prepare for trial upon such an issue.

This point was considered in the opinions of the General Term and must have been by the Court of Appeals.

* It must be deemed that the Court of Appeals held that it was not valid.

The other questions in the case have been determined, heretofore, unfavorably to the defendant. Exceptions as to rulings upon evidence do not need to be considered. The verdict was ordered by the court, and facts that were undisputed called for that direction, irrespective of the contests that concerned the evidence.

The judgment and order appealed from affirmed, with costs.

Duqbo, J., concurs.

Judgment and order affirmed.

See 127 N. Y. 370.