Ferris v. Haynes

The order denying the motion for a discovery of books and papers was right. The General Term of the Court of Common Pleas expressly held that the laintiff could not recover a percentage as rokerage on any fixed sum, for the reason that no fixed sum was mentioned in the lease as rental. Whether that decision was correct or not is not the question, and it cannot be reviewed on an appeal from this order. It is the law of the case, as laid down by the General Term of the court iu which the action was brought. Under the decision, as made by the General Term, it would be useless to undertake to give evidence of net Erofits payable as rent, because the court eld that there was nothing payable as rent, and that the principle controlling the case was such that no recovery could be based upon a specific sum, no matter how that specific sum might be ascertained, it not being mentioned in the issue; or, in other words, there was nothing payable as rent from the lessee to the lessor until at the end of the accounting, and that, therefore, the plaintiff had mistaken his remedy, and should have sued on a quantum meruit. The court below was right, therefore, in holding that the motion must be denied upon the opinion of the General Term of the Court of Common Pleas. Present—Barrett, Rumsey, Patterson and Ingraham, JJ.