Pentz v. Sackett

1 Hill & Den. 113

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Bronson, J.

The defendant is clearly right in saying that this is not the suit of the Mechanics’ Banking Association ; but is the suit of Frederick Pentz. He is the plaintiff. The words which follow his name, president, 4rc., can only be regarded as a description of the- person. If the pleader intended the bank should be plaintiff, he should either have sued in the corporate and business name of the bank; or, after giving the name and title of the president, lie should have alleged that the defendant was indebted to, and promised to pay the Mechanics’ Banking Association. (Delafield v. Kinney, 24 Wend., 345; The Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 240.) But this does not overthrow the action. The note given in evidence was negotiable and had been negotiated, and Frederick Pentz could as well sue on it as the bank, or any other holder.

The objection to the articles of association was quite too general to lay the foundation for all, or any one of the points which are now made upon the admission of that evience. The defendant should have specified the supposed defects at the circuit, as he does here. And besides, in the view which has been taken of the case the plaintiff had no occasion for giving the articles of association in evidence.

The motion for a nonsuit was properly overruled. The plaintiff produced the note, and it appeared to have been indorsed in blank. That was sufficient presumptive evidence that he was the owner, and enough to entitle him to a verdict on the second issue. No evidence to rebut that presumption had then been given.

It afterwards appeared that the note belonged to the Mechanics’ Banking Association. Strictly, there should have been a verdict for the plaintiff on the first issue, and for the defendant on the second; and the plaintiff might then have moved for judgment non obstante veredicto on the second issue, on the ground that the second plea was bad in substance. But the defendant made no point on the trial that he was entitled to a verdict on the second issue. Justice has been done, and we ought not to grant a new trial to enable the defendant to start a technical objection which he did not make at the proper time.

New trial denied.