Seeley v. Osborne

This action was brought to recover for the breach of a contract by which defendant, in considera*410tion of the transfer to him by plaintiffs of forty-five shares of the stock of the Dentists Supply Company, agreed to cause the Dentists Supply Company to sell and deliver to plaintiffs at their option and request at any time thereafter 10,000' sets of artificial teeth at forty-five cents per set. The contract was executed in September, 1905. The breach assigned is that the Dentists Supply Company only sold and delivered 2,170 sets of teeth, and refused to sell and deliver the remaining 7,830 sets.

The defense is substantially a general denial, the recovery of a prior judgment for fraud in entering into the alleged contract for $7,500 damages, besides costs, and the Statute of Limitations.

On February 19, 1907, plaintiffs recovered judgment against defendant for $7,670.25 in an action to recover damages for false representations as to the value of certain stock which was part of the purchase price of plaintiffs’ stock. The gravamen of the false representations was that defendant also agreed to and did transfer 1,200 twenty-five-dollar shares of the stock of the Butterick Painless Dental Company to plaintiffs, upon his false representation that it was worth $15,500, which sum defendant promised and agreed to pay six months thereafter; that the Butterick stock was only worth $5,000, and defendant neglected to pay the sum of $15,500 when plaintiffs tendered back the Butterick stock. Such judgment was affirmed. Seeley v. Osborne, 123 App. Div. 908; affd., 195 N. Y. 536. The defendant did not, either in his proposed findings or by motion on the trial, raise the point that the City Court had no jurisdiction to award judgment for more than $2,000 besides costs.

The City Court had jurisdiction to entertain an action at law to.recover more than $2,000, but it could enter judgment therein for no more than $2,000 besides *411costs. Ralli v. Pearsall, 69 App. Div. 254, 257; Lewkowicz v. Queen Aeroplane Co., 154 id. 142, 154-156; affd., 207 N. Y. 290. Since the amendment of section 1317 of the Code, in 1912, conferring upon the Appellate Term the power to direct such judgment upon appeal from a judgment entered after a trial by the court, “ as the trial court should have done ” (Bonnette v. Molloy, 209 N. Y. 167, 171, 172), the power of the Appellate Term to do justice by awarding such relief as the trial court should have awarded is not limited by the question whether or not any formal motion for such relief was made or any conclusion of law requesting such relief was submitted at the trial. To hold otherwise would substitute procedure for justice, contrary to the spirit and intent of section 1317.

The former action in the Supreme Court was not an action to rescind the contract, bnt to recover damages for fraud in inducing plaintiff to enter into said contract. The present cause of action for failure to carry out certain provisions of the contract did not arise until after the entry of judgment in the former action. The defense that the judgment in the former action is a bar to the bringing* of this action is, therefore, without merit. All other questions involved were disposed of on the previous consideration of the action. No sufficient ground is presented for altering the previously announced decision.

The judgment should be modified by reducing it to the amount allowed by statute to be recovered in the City Court and, as so reduced, affirmed, without costs upon this appeal or upon the reargument.

Page, J., concurs.

Judgment modified and, as modified, affirmed, without costs.