FIFTH DEPARTMENT, JUNE TERM, 1893. certifying whether or not it appeared on the trial before him that the defendant, in the acts complained of, acted in good faith, and that the justice made such return certifying that such fact did not appear. It is true the justice went further in his return and narrated a transaction between himself and the defendant, in which his signature was obtained to a paper which the justice afterwards understood was a certificate of good faith, but which he did not understand to be such when it was signed, and which, if it was such, was untrue. It is apparent why this return could not have been regarded by the County Court as equivalent to the certificate required by the statute, section 3244 (supra), as a condition of exempting the defendant from liability for costs. The judgment and order appealed from should be affirmed. LEWIS, MACOMBER and HAIGHT, JJ., concurred. Judgment and order of the Monroe County Court appealed from affirmed, with costs. JOHN W. BANKER, Respondent, v. WILLIAM E. KNIBLOE, Appellant. Verdict directed by the court, after requests for a direction by both parties — existence of a question of fact for the jury, not a ground for granting a new trial. When, on a trial, at the close of the evidence both parties ask for the direction of a verdict by the court, and neither party asks to go to the jury upon any question in the case, and the court thereupon directs a verdict, a new trial is not to be granted upon the ground there was a question of fact in the case which should have been submitted to the jury. APPEAL by the defendant, William E. Knibloe, from an order of the Supreme Court made at the Monroe Special Term and entered in the office of the clerk of Livingston county on the 5th day of January, 1893, granting the plaintiff's motion for a new trial, made after the rendition of a verdict for the defendant, by direction of the court, at the Livingston Circuit. L. O. Reed, for the appellant. G. W. Daggett, for the respondent. DWIGHT, P. J.: FIFTH DEPARTMENT, JUNE TERM, 1893. At the close of the evidence, both parties asked for the direction of a verdict by the court, and neither party asked to go to the jury upon any question in the case. The court thereupon directed a verdict for the defendant, but stayed the entry of judgment, and gave time to the plaintiff to move for a new trial. That motion was afterwards heard at a Special Term held by the same judge, and the order for a new trial was granted solely upon the ground, as appears from the opinion of the judge, that there was a question of fact in the case which should have been submitted to the jury. The situation is peculiar. By the course taken by the parties on the trial both of them waived the right to go to the jury upon any question in the case, and submitted all questions- of fact as well as of law to the decision of the court. (Bank of Attica v. Pottier & Stymus Mfg. Co., 17 N. Y. St. Repr. 327, 332; Dillon v. Cockcroft, 90 N. Y. 649; Provost v. McEncroe, 102 id. 650; Reilly v. Lee, 41 N. Y. St. Repr. 559, 562.) It is plain, therefore, that no error was committed in withholding any particular question of fact from the jury, since all questions of fact were withdrawn from the jury by the parties themselves. In such a case the only questions reviewable on a motion for a new trial are those raised by exceptions taken on the trial, and the question whether the decision of any question of fact, necessarily involved in the direction of a verdict, was without evidence to support it. (Gregory v. The Mayor, 113 N. Y. 416; Kirtz v. Peck, Id. 222; Provost v. McEncroe, supra.) Manifestly, in such a case it is not open to either party on appeal, or on a motion for a new trial, to complain that there was any question of fact in the case which should have been submitted to the jury. In this case the only question of fact which was really litigated on the trial, or which is suggested by the plaintiff as an open question on this motion, is the question whether the plaintiff was a holder in good faith and for value of the promissory note in suit, and that is the question which the court at Special Term held should have been submitted to the jury. For the reasons stated it is evident that the motion for a new trial should not have been granted on that ground, and we find no other ground in the case which justifies the granting of the motion. FIFTH DEPARTMENT, JUNE TERM, 1893. The order must, therefore, be reversed, with costs, and judgment directed for the defendant on the verdict. LEWIS, MACOMBER and HAIGHT, JJ., concurred. Order granting new trial appealed from reversed, with costs, and judgment ordered for defendant on the verdict. JOHN J. P. READ, Appellant, v. LOUIS KNELL, Respondent, Impleaded, etc. Assignment of a mortgage by an administrator to himself — voidable, but not void. If an administrator assigns a mortgage belonging to his intestate's estate for a nominal consideration to an intermediary, who assigns it to him in his individual name, such an assignment is not void but voidable only, and that at the instance of some person interested in the estate; and an objection to the validity of such assignment is not available to a stranger to the estate as a defense to the foreclosure of the mortgage by the assignee. APPEAL by the plaintiff, John J. P. Read, from a judgment of the Supreme Court in favor of the defendant, Louis Knell, entered in the office of the clerk of Erie county on the 1st day of February, 1893, upon the findings and decision of the court at the Erie Special Term dismissing the complaint. 0. O. Cottle, for the appellant. A. Moot, for the respondent. DWIGHT, P. J.: The action was to foreclose a mortgage of real estate, made by one Joseph Armbruster to Elizabeth Read, the mother of the plaintiff, since deceased. The answer of the defendant, Louis Knell, the owner of the property, pleaded payment of the mortgage in full ; denied on information and belief that the plaintiff was the owner of the mortgage, and alleged facts tending to show a defect of parties. The proof was that the plaintiff was duly appointed and acted as administrator of his mother's estate; that as such he assigned the mortgage for a nominal consideration to a friend who, in turn, for a similar consideration assigned it to him in his individual name. 69 541 143a 484 FIFTH DEPARTMENT, JUNE TERM, 1893. His mother left surviving her, one daughter and himself as her sole next of kin, and no husband; the daughter died before the assignment of the mortgage to the plaintiff, without issue. She was reputed to have been married, and a person claiming to be her husband presented a paper purporting to be her will, to the surrogate of Erie county, by whom it was admitted to probate, but the decree was reversed by this court and issues were awarded to be tried by a jury. Such issues were twice tried, but no verdict was reached on either trial. The learned court at Special Term made no finding whatever bearing upon the question of defect of parties, but found only — in substance -that the plaintiff held the mortgage in his representative capacity as administrator of his mother's estate, and that the assignment to him was absolutely void and vested in him in his individual capacity no title whatever to the security. It was on this ground solely that the judgment was based, dismissing the complaint. The judgment was clearly erroneous. The assignment was not void but voidable only, and that at the instance of some person interested in the estate. Perry on Trusts, 205; Hawley v. Cramer (4 Cow. 719); Forbes v. Halsey (26 N. Y. 53, 65); Harrington v. Brown (5 Pick. 519, 521), and all the authorities are to the same effect. It was not, therefore, competent for the defendant Knell to object to the validity of the assignment to the plaintiff. (Harrington v. Brown, supra.) He might, perhaps, have established his defense of the defect of parties, but that question, as we have seen, was not considered nor passed upon by the court at Special Term. The judgment must be reversed for error in the conclusion of law upon which it was based, and which was duly excepted to. A new trial will be granted, upon which the other defense mentioned may receive consideration. LEWIS, MACOMBER and HAIGHT, JJ., concurred. Judgment appealed from reversed and a new trial granted, costs to abide the final award of costs. FIFTH DEPARTMENT, JUNE TERM, 1893. SAMUEL K. NESTER, Appellant, v. THOMAS G. CRAIG, Respondent, Impleaded, etc. Contract made by a special agent in excess of his authority — risk assumed in dealing with a special agent. Authority conferred by a principal upon a special agent, to sell barley for cash, on immediate delivery, at Detroit, Michigan, at one dollar and fifty cents per hundred pounds, held, not to authorize the agent to contract for the sale of barley for delivery at Phelps, New York, at intervals of a week during a period of more than two months, at eighty cents a bushel, payable in installments after each delivery. One who deals with a special agent, specially authorized for that transaction, is put upon inquiry as to the extent of the agent's authority and deals with him at the risk of his authority being exceeded. APPEAL by the plaintiff, Samuel K. Nester, from a judgment of the Supreme Court dismissing his complaint, entered in the office of the clerk of Ontario county on the 26th day of September, 1892, on the direction of a nonsuit at the end of the plaintiff's case, at the Ontario Circuit, and from an order denying the plaintiff's motion for a new trial made upon the minutes. D. B. Backenstose, for the appellant. W. S. Hubbell, for the respondent. DWIGHT, P. J.: The action was for damages by the failure of the defendants to perform an executory contract for the sale to the plaintiff of a large quantity of barley. The plaintiff was a maltster at Geneva, New York, and the defendants composed the firm of Gillett & Hall, grain dealers, at Detroit, Michigan. The contract of sale was made by one J. Blumenthal, a barley broker, assuming to act as agent for the defendants. His authority was derived solely from the following letter and telegram: "GILLETT & HALL, GRAIN COMMISSION MERCHANTS. "DETROIT, Sept. 27th, 1890. "MR. J. BLUMENTHAL, Rochester, N. Y.: We express to you two samples and you can sell on sample, A 6,000 bus. at $1.55 net here. B. 10,000 bus. at $1.56 net here. |