Opinion
Argued April 28, 1921
Decided May 10, 1921
Joseph M. Hatfield and James A. Murphy for appellants.
Henry M. Stevenson for respondent.
The complaint alleged that the plaintiff purchased of the defendants securities of the value of $83,752.50 under the agreement that the latter would retake them at any time except in a time of panic and repay the purchase money. The answer denied the making of any such contract and as amended claimed that any tender to return the property was made in a time of panic. After a trial the jury found a general verdict for the defendants. They also made certain special findings. (Code Civ. Pro. sec. 1187.) Two of these findings, namely, that the contract alleged was in fact made and that the securities were tendered back within a reasonable time, were favorable to the plaintiff. The third, that this tender was made in a time of panic, was in favor of the defendants. Thereupon a motion was made by the latter on the judge's minutes, upon exceptions taken and upon all the grounds specified in section 999 of the Code, to set aside these first two findings. This motion was denied and a judgment reciting only the general verdict was entered in their favor. There was no appeal. Three years later on the plaintiff's motion this judgment was amended by inserting recitals as to these special findings and also, erroneously, that after they were made, the court directed a general verdict in favor of the defendants. The defendants appealed from this order and also from the judgment entered thereon, in this latter appeal stating that they intended to bring up for review the interlocutory order denying their motion to set aside the two findings to which they objected. The latter appeal was dismissed by the Appellate Division. The order amending the judgment was affirmed. Upon permission given by us an appeal was then taken to this court.
We cannot discuss the propriety of making such an amendment as was here made for unless the amendment of the judgment materially altered its character and materially altered the rights of the defendants not only had their time to appeal to the Appellate Division expired long before their notice of appeal was served, but they were not aggrieved by the action of the trial judge. They seem to claim injury on the theory that these unfavorable special findings of the jury will be conclusive against them in any later action the same plaintiff may choose to bring against them. Clearly this is not so. The findings in favor of the plaintiff were not and could not be followed by a judgment in his favor. They do not constitute a bar. ( Springer v. Bien, 128 N.Y. 99; Rudd v. Cornell, 171 N.Y. 114, 127; Burlen v. Shannon, 99 Mass. 200.) This would be equally true had these findings in fact constituted a special verdict and had the court thereon directed a general verdict for the defendants. We might add that so far as the motion to set aside the findings is concerned, we know of no rule that permits such a motion, made by the party in whose favor judgment is entered under section 999 of the Code.
The judgment appealed from should be affirmed, with costs.
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, McLAUGHLIN and CRANE, JJ., concur.
Judgment affirmed.