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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

procuring cause of the sale. When Rosenberg was on the stand as a witness for the plaintiff, he was asked if he did pay Janssen a commission on the transaction, and the evidence was excluded on the defendants' objection. On the question being subsequently repeated and the objection being overruled, he answered: “I did not pay it;” but added : “I paid some money, but I did not pay the commission.

I did not pay any commission. They told me that Muller could buy it for $40,000. I told them if they could get it for $30,000 for me I would give each one $1,000, Mr. Janssen and Mr. Freedman. Q. And you paid them? A. $1,000 each, that is correct.” Muller was not examined as a witness, but figures thronghout the case as a possible buyer, and the taking of $2,000 by these brokers without the defendants' knowledge presumably for effecting a sale to the prejudice of their employers was surely reprehensible and perfidious. The fact was undisputed and admitted by both brokers. It had no direct bearing upon the main issue, and there is nothing to indicate that the court, if requested, would not have instructed the jury that the credibility of the witnesses and the weight to be given to their testimony were solely within their province. No such request was asked and no exception taken to the general charge. Under these circumstances the remarks of the court had no apparent influence upon the result, and clearly do not call for a reversal. (Winne v. McDonald, 39 N. Y. 233 ; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 id. 25.) In view of the great weight attached by juries to expressions from the bench, harsh remarks about the motives of witnesses may not be generally commended, yet as was said by the Court of Appeals in the Hoffman Case (supra at p. 32): “It would greatly embarrass the administration of justice if every unguarded expression of opinion by the judge on a question of fact during a trial should be subject to exception as invading the province of a jury, and we have seen no wellconsidered authority sustaining such a rule.”

The learned counsel for the appellants claim that the defendants did not receive a fair and impartial trial, in that the learned court frequently examined the witnesses in a spirit of opposition and hostility to the defense. While the practice by a court of interjecting a series of questions on the examination of each witness may easily grow into an abuse, calling for reversal in a proper case, what was

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. done in this instance was done without objection or exception of any kind and in an apparent impartial desire to elicit the truth. The language of the court in Riegler v. Tribune Association (41 App. Div. 490, 492) seems quite applicable, viz., that "no court has ever held that it was reversible error for a trial judge to ask a witness a series of proper questions which were considered necessary to elicit the truth, when the facts testified to are material, the condition of the evidence obscure, or the truth not fully revealed.”

Other matters assigned as ground of error have been examined, and none found requiring that the case should be retried.

The judgment and order should, therefore, be affirmed.
GOODRICH, P. J., WOODWARD, JENKS and HOOKER, JJ., concurred.

Judgment and order affirmed, with costs.

FREDERICK R. VERNON and FRANCIS J. VERNON, Respondents, v.

J. W. O’BANNON COMPANY, Appellant.

A complaint containing two causes of action, to each of which a counterclaim is

interposed- an order setting aside a verdict as to one cause of action and granting a new trial involves a new trial of both causes of action and of the counterclaim right thereto, not waived by not moving to resettle an improper order.

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The complaint in an action contained two separate and distinct causes of action.

The answer denied certain allegations of the complaint in two counts thereof and as a separate defense set up a counterclaim to both causes of action, arising out of the alleged breach of the contract which was the basis of the plaintiffs' second cause of action. At the trial three orders were made, viz., an order setting aside as inadequate a verdict in favor of the plaintiffs upon the first cause of action and granting a new trial of that cause of action; an order denying the defendant's motion to set aside a verdict in favor of the plaintiffs

upon the second cause of action, and an order dismissing the counterclaim. Upon an appeal to the Appellate Division the three orders were affirmed, but

the order of affirmance made no provision for a new trial. Upon the second trial the trial judge ruled that only the first cause of action was before the court, and that neither the second cause of action nor the counterclaim could

be again litigated. Held, that the order setting aside the verdict of the jury as to the first cause of

action and granting a new trial thereof necessarily involved a retrial of the

whole controversy, including the second cause of action and the counterclaim; That the failure of the defendant to move for a resettlement of the order of the

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903.

Appellate Division and for the insertion therein of a provision defining the scope of the new trial, or for such a disposition of the appeal from the respective orders as would result in itself in a trial of the whole case de novo,

did not preclude the defendant from objecting to the ruling of the trial judge; That the defendant could not be deprived of a substantial right by mere acquies

cence in the form of the order by which he was defeated.

APPEAL by the defendant, J. W. O'Bannon Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22d day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 7th day of July, 1902, denying the defendant's motion for a new trial made

upon

the minutes. J. Campbell Thompson [Anson Burlingame Cole with him on the brief], for the appellant.

Frederick Seymour, for the respondents.

HIRSCHBERG, J.:

The main facts sufficiently appear in the opinion written by Mr. Justice WILLARD BARTLETT, when this case was before the court on appeal from the results of the first trial. (See Vernon v. O'Bannon Co., 71 App. Div. 618.) It is only necessary now to recall that the complaint contains two separate and distinct causes of action, while the answer, after denying certain allegations of the complaint, in two counts thereof, sets up a counterclaim to both causes of action arising out of the alleged breach of the contract, which is the basis of the plaintiffs' second cause of action. On the first trial three orders were entered, and on appeal all three were unanimously affirmed, viz.: An order setting aside the verdict of the jury in favor of the plaintiffs upon the first cause of action as inadequate; an order denying the defendant's mokion to set aside the verdict of the jury in favor of the plaintiffs upon the second cause of action, and an order dismissing the counterclaim. In the order of this court, on affirmance, no provision was made for a new trial, and as the order setting aside the verdict on the first cause of action granted a new trial in terms as to that cause of action, the learned trial justice ruled upon the second trial that only the first cause of action was then before the court, and tried the case upon the theory that neither the second cause of action nor the counterclaim could be

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. again litigated. I was inclined on the argument to the belief that even if this ruling were error it would be unavailing to the defendant, since it might have moved for a resettlement of the order of this court and thereby have procured the insertion of a precise provision with respect to the scope of the new trial, or such a disposition of the appeal from the respective orders as would result in itself in a trial of the whole case de novo, but I am satisfied on reflection that a litigant cannot be deprived of a substantial right by mere acquiescence in the form of the order by which he is defeated, especially in a case where there may possibly be doubt as to the right of further appeal. The utmost that can be said of the order is that it did not settle the scope of the new trial, but left it to be determined in accordance with the law, and, therefore, acquiescence would not necessarily involve a waiver of the right to present the question now under consideration.

It seems to be well settled that there cannot be two final judgments in this case and that the setting aside of the verdict of the jury as to the first cause of action and the granting of a new trial thereon necessarily involved a retrial of the whole controversy, including the second cause of action and the counterclaim. As to the latter doubt was expressed on the former hearing (71 App. Div. 619) whether an appeal would lie from the order of dismissal, and the question was regarded as presented by an exception taken to a ruling on the trial. But that the whole case should have been sent for retrial would seem to be decided by the cases of Goodsell v. Western Union Telegraph Co. (109 N. Y. 147); Board of Underwriters v. Nat. Bank (146 id. 64); Altman v. Hofeller (152 id. 498, 504), and Freel v. County of Queens (154 id. 661).

It follows that the judgment and order must be reversed and a new trial granted of the entire case.

GOODRICH, P. J., BARTLETT, WOODWARD and JENKS, JJ., concurred.

Judgment and order reversed and new trial of the entire case granted, costs to abide the event.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

ABRAM ROSEMAN, Appellant, v. DANIEL J. Mahony, Respondent.

Pre-existing debt as a consideration for a note - it must constitute payment thereof

or extend the time of payment in order to be enforcible against an accommodation indorser refusal to charge a correct proposition of law not within the issue presented by the evidence.

While, under section 51 of the Negotiable Instruments Law (Laws of 1897, chap.

612), “an antecedent or pre-existing debt constitutes value," a note given as security for a pre-existing debt is not enforcible in the hands of the creditor against an accommodation indorser thereof; in order to be enforcible against the accommodation indorser it must appear that the note was taken in payment of the pre existing debt or that the creditor extended the time for the

payment thereof. The refusal of a judge presiding at a jury trial to charge a proposition of law

which was correct in itself, but which bore upon an issue not embraced within the evidence, does not constitute an error requiring the reversal of a judgment.

APPEAL by the plaintiff, Abram Roseman, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 19th day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 23d day of September, 1902, denying the plaintiff's motion for a new trial made upon the minutes.

Cyrus A. Peake, for the appellant.

Ralph Earl Prime, Jr., for the respondent. HIRSCHBERG, J.:

The defendant is sued as the indorser of a promissory note made by Edmund J. Earl on April 3, 1902, for $300 at three months. The note is a renewal of one made on January 3, 1902, and the defendant asserts among other defenses that he indorsed the original note solely for Earl's accommodation, and that it was delivered to the plaintiff without consideration. The evidence tends to show the existence of a debt in favor of the plaintiff and against Earl on January 3, 1902, and that the note was given to secure it; and the main question upon the appeal is whether there must be a new trial because of the undoubted error of the learned court in refusing to charge “ that value is any consideration sufficient to support a simple con

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