Sternberger v. Bernheimer

Superior Court of New York

Sternberger v. Bernheimer

4 N.Y.S. 546, 1889 N.Y. Misc. LEXIS 1586

CourtThe Superior Court of the City of New York and Buffalo

DecidedJanuary 7, 1889

StatusPublished

This text of 4 N.Y.S. 546 (Sternberger v. Bernheimer) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sternberger v. Bernheimer, 4 N.Y.S. 546, 1889 N.Y. Misc. LEXIS 1586 (superctny 1889).

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Opinion

Sedgwick, 0. J.

The action was upon a joint liability on contract. One defendant was not served, and did not appear. The trial proceeded against the other two defendants. The verdict was against one of these, and in favor [547]*547■of the other. Judgment was entered against the former individually, who is the appellant here. On the appeal he claims that the judgment should have been entered against him and the defendant not served jointly. The duty of •entering judgment upon a general verdict is upon the cleric. See section 1189, Code Civil Proe. A mistake by him is to be remedied by motion to the court, and then, if the motion be denied, by appeal from, the order made. The remedy is not by an appeal from the judgment. Wright v. Nostrand, 94 N. Y. 41, and the cases there cited. Upon the trial the defendant asked for a dismissal of the complaint, on the ground that the evidence did not show any joint venture or joint liability. The learned counsel for appellant supposes that the only testimony that would tend to show a joint interest or contract was the use by witnesses of the word “pool,” and he urges that the word “pool” is unknown to the law, and was not at all explained on the trial. This •does not do justice to the evidence. The jury could know what was intended by the parties, because the testimony showed what was done in the “pool” under the joint order given by the parties, and the recognition by the appellant that the plaintiff had acted properly. I think, also, that so many decisions have been made concerning pools that resort to the cases might be made properly for a definition of the word. It is unnecessary to refer to them, be•cause the acts and declarations of the parties showed what they meant when the word was used. The condition of the testimony would not justify a setting aside of the verdict, as against the weight of evidence. The judgment •and order appealed from should be affirmed, with costs.

Ingraham, J„ concurs.

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Sedgwick, 0. J.

The action was upon a joint liability on contract. One defendant was not served, and did not appear. The trial proceeded against the other two defendants. The verdict was against one of these, and in favor [547]*547■of the other. Judgment was entered against the former individually, who is the appellant here. On the appeal he claims that the judgment should have been entered against him and the defendant not served jointly. The duty of •entering judgment upon a general verdict is upon the cleric. See section 1189, Code Civil Proe. A mistake by him is to be remedied by motion to the court, and then, if the motion be denied, by appeal from, the order made. The remedy is not by an appeal from the judgment. Wright v. Nostrand, 94 N. Y. 41, and the cases there cited. Upon the trial the defendant asked for a dismissal of the complaint, on the ground that the evidence did not show any joint venture or joint liability. The learned counsel for appellant supposes that the only testimony that would tend to show a joint interest or contract was the use by witnesses of the word “pool,” and he urges that the word “pool” is unknown to the law, and was not at all explained on the trial. This •does not do justice to the evidence. The jury could know what was intended by the parties, because the testimony showed what was done in the “pool” under the joint order given by the parties, and the recognition by the appellant that the plaintiff had acted properly. I think, also, that so many decisions have been made concerning pools that resort to the cases might be made properly for a definition of the word. It is unnecessary to refer to them, be•cause the acts and declarations of the parties showed what they meant when the word was used. The condition of the testimony would not justify a setting aside of the verdict, as against the weight of evidence. The judgment •and order appealed from should be affirmed, with costs.

Ingraham, J„ concurs.

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Bluebook (online)

4 N.Y.S. 546, 1889 N.Y. Misc. LEXIS 1586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sternberger-v-bernheimer-superctny-1889.

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