Opinion
March Term, 1864
H.G. De Forest, for appellant.
W.Z. Larned, for respondents.
The appellant's points are chiefly occupied with a discussion of the findings of fact by the referee. But the exceptions to the findings of fact cannot be reviewed here. The testimony before the referee was conflicting upon all the material points involved in the action, and the Supreme Court, at general term, has affirmed the judgment. This court therefore cannot look into the testimony, to determine whether the facts are found according to the weight of evidence. There was necessarily a judgment against the plaintiff, and in favor of the defendants; and the only question is whether the proper judgment has been rendered. This depends mainly upon the questions, whether the matter set up in the supplemental answer of the defendant Fredricks, is a counterclaim within the spirit and meaning of the code, so as to entitle the defendants, or either, or any of them, to affirmative relief; and whether that answer is available to the other individuals composing the firm of Rubens, Fredricks Co. who are made defendants in the action by the summons and complaint by their firm name only.
There can be no doubt, I think, that the matter thus set up was strictly a counter claim within section 150 of the code. It was a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or was at least connected with the subject of the plaintiff's action. It was for the price and value of the identical goods which were the subject of the action. The question at issue before the supplemental answer was put in, was, which party had the title, or the right to control and dispose of the property.
I do not think it lies with the plaintiff, under the circumstances of this case, to allege that his taking was a mere tort, for the purpose of defeating the counter-claim. And even if an action, sounding in tort, might be maintained by the defendants Rubens, Fredricks Co., for the taking while the action to determine the title was pending, I am still of the opinion that the cause of action for the value of the goods would constitute a good counter-claim in such a case as this. It existed in favor of certain of the defendants in the action, in whose favor a several judgment might be had against the plaintiff, and the plaintiff might also have had a separate judgment against them. The conditions of the code, therefore, are all fulfilled in respect to this claim of the defendants.
I see nothing for which the judgment should be reversed in the fact that it is rendered for the value of the goods, in favor of the several individuals who compose the firm of Rubens, Fredricks Co. These defendants were prosecuted by the plaintiff by their firm name, he alleging in his complaint that the name of the individual members of said firm were unknown to him. Fredricks only appeared and answered in the first instance, claiming the goods in behalf of his firm. He also put in the supplemental answer in which he claims judgment in his own favor for the value of the goods, and not in favor of himself and his copartners individually. After judgment the defendants were allowed by the court, at general term, to amend by entering an appearance nunc pro tunc for the other two partners, and to amend the supplemental answer so as to make it a claim in behalf of all the members of the firm individually, and a demand for judgment in their favor. It does not appear from the record how many of these defendants had been served with process, nor why the two who were allowed to appear so as to bind them by the judgment, did not appear at an earlier stage of the proceedings. It is suggested in the respondents' points that these two defendants were residents of a foreign country, and were not served with process. But however this may be, the facts, it is to be presumed, were all before the court when the order granting the amendment was made, and it was an order they had clearly the right to make under section 173 of the code. The case had been fully tried upon its merits, and the amendment was only in furtherance of justice. And where the question is one of a common or general interest of several persons, one or more may be allowed to sue or defend for the benefit of the whole. (Code, § 119.) It was wholly unnecessary to bring in the firm of Kessel Brothers. They did not pretend to have any title to the property, or right of control over it. But even if they were to be regarded as the general owners, the defendants, who were in fact consignees, could recover the value of the property converted by a stranger.
I am of the opinion, therefore, that the judgment is right and should be affirmed.
It is apparent that on the trial before the referee, the firm of Rubens, Fredricks Co. were regarded as the claimants of the goods in controversy. And they were properly so regarded. That firm was made the parties defendants by the plaintiff, with the defendant Kessel. He alleged in his complaint that the bills of lading for said goods had been wrongfully delivered by the defendant Kessel to that firm; and that said defendants, Rubens, Fredricks Co., paid the value therefor, and had notice of the plaintiff's rights. That he had demanded said bills of lading of that firm, and that the firm refused to deliver the same, and claimed a right to hold the same, and to be entitled to the possession of the said merchandize described therein. The plaintiff thus made the firm of Rubens, Fredricks Co., the substantial defendants in the action, and as such they were treated in all the proceedings. The answer interposed, although in form in the name of the defendant Fredricks, was distinctly stated to be in the name and on account of the firm of Rubens, Fredricks Co., in whose name, and for whose account the said transactions in the answer set forth were made. The supplemental being in continuation of the original answer, is to be construed in connection with it, and the counter-claim therein made, is to be taken and deemed a counter-claim made and interposed on behalf of the said firm of Rubens, Fredricks Co. The defendant Fredricks individually did not set up or pretend that he had any individual interest in said goods, or in the bills of lading, or that individually he had any counter-claim against the plaintiff. The plaintiff's action was against the firm, and the answers are to be regarded as those of the firm. If this were not so, it is very clear that under the code, the supreme court had full authority and ample power to make the amendment which was ordered, by inserting the individual names of the other members of the firm in the answers and in the judgment. Section 173 of the code authorizes the court, before or after judgment, in furtherance of justice, on such terms as it may deem proper, to amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party; or a mistake in any other respect; or by inserting other allegations material to the case; or where the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. The supreme court in this case ordered the amendments by amending the judgment in accordance with the facts proved on the trial, on the terms of affirmance of the judgment, without costs of the appeal. These amendments did not substantially change the claim of the plaintiff, or the defense interposed. They were, in fact, in harmony with both, and the power might also be sought for, in the authority given to add the name of any party, or to correct any mistake in the name of any party. The amendments were clearly in furtherance of justice, but if they were not, the order of the supreme court making them, is not open to review in this court. ( New York Ice Company v. North Western Insurance Company, 23 N.Y. 357.) The facts found by the referee are conclusive that the firm of Rubens, Fredricks Co. were the owners of the goods, and entitled to retain them as against this plaintiff. He having got possession of them, and converted them to his own use, they had a valid claim against him for the value thereof. This counter-claim arose directly out of the transactions set forth in the complaint as the foundation of the plaintiff's claim, and was connected with the subject of the action. (Code, § 150, sub. 1.) It was properly set up in the answer, and correctly passed upon by the referee. The facts proved by him, show that his conclusions of law thereon were correct, and the supreme court rightfully affirmed the judgment.
The judgment should also be affirmed by this court.
SELDEN, J. was absent. All the other judges being for affirmance, judgment affirmed.