Sivin v. Mutual Match Co.

Appellate Terms of the Supreme Court of New York

Sivin v. Mutual Match Co.

46 Misc. 244, 91 N.Y.S. 771

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1905

StatusPublished

Cited by1 cases

This text of 46 Misc. 244 (Sivin v. Mutual Match Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sivin v. Mutual Match Co., 46 Misc. 244, 91 N.Y.S. 771 (N.Y. Ct. App. 1905).

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Opinion

Scott, J.

The only serious defense was that the time of credit had not expired. Since the case on appeal contains no statement that it contains all the evidence given upon the trial, we cannot review the facts (Gorham Mfg. Co. v. Seale, 3 App. Div. 516) and must confine ourselves to the exceptions talcen by the appellant. Only one of these requires consideration. It was the defendant’s contention that the loan now sued for had been made pursuant to a resolution of the directors of the defendant, adopted at a meeting at which one of the plaintiffs, being a director, was present. That resolution provided that the stockholders of the company should advance the sum of $2,000’ to their proportionate amount of share holdings in the company to be invested as a loan and become due eight years from the first day of May, 1903. This resolution was introduced in evidence, although there was some attempt on plaintiffs’ part to question the fact of its adoption and an entire disclaimer of any knowledge of it. At the close of the charge the defendant asked the court to charge that “ if the jury shall find that the money was advanced pursuant to the resolution adopted then the verdict should be for the defendant.” This was refused and herein we think that the court fell into error. The resolution distinctly provided for a credit of eight years, and if the loan was made pursuant to that resolution it would necessarily follow that the plaintiff had made a loan payable in eight years and could not now recover. We have examined with care the colloquial' charge and have been unable to find therein any instruction which can fairly be said to cover the defendant’s request.

MacLean and Davis, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Scott, J.

The only serious defense was that the time of credit had not expired. Since the case on appeal contains no statement that it contains all the evidence given upon the trial, we cannot review the facts (Gorham Mfg. Co. v. Seale, 3 App. Div. 516) and must confine ourselves to the exceptions talcen by the appellant. Only one of these requires consideration. It was the defendant’s contention that the loan now sued for had been made pursuant to a resolution of the directors of the defendant, adopted at a meeting at which one of the plaintiffs, being a director, was present. That resolution provided that the stockholders of the company should advance the sum of $2,000’ to their proportionate amount of share holdings in the company to be invested as a loan and become due eight years from the first day of May, 1903. This resolution was introduced in evidence, although there was some attempt on plaintiffs’ part to question the fact of its adoption and an entire disclaimer of any knowledge of it. At the close of the charge the defendant asked the court to charge that “ if the jury shall find that the money was advanced pursuant to the resolution adopted then the verdict should be for the defendant.” This was refused and herein we think that the court fell into error. The resolution distinctly provided for a credit of eight years, and if the loan was made pursuant to that resolution it would necessarily follow that the plaintiff had made a loan payable in eight years and could not now recover. We have examined with care the colloquial' charge and have been unable to find therein any instruction which can fairly be said to cover the defendant’s request.

MacLean and Davis, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

46 Misc. 244, 91 N.Y.S. 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sivin-v-mutual-match-co-nyappterm-1905.

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