City Trust, Safe Deposit & Surety Co. of Philadelphia v. American Brewing Co.

Haight, J. The first question raised is as to -whether this order is appealable. Yo appeal lies from such, an order to this court as a matter of right. (Bassett v. French, 155 *291 N. Y. 46.) Neither does an appeal lie even though certified by the Appellate Division where the assessment of the damages involved a discretion on the part of the court or jury making the assessment. (Lewin v. Lehigh V. R. R. Co., 169 N. Y. 336.) But in the case now before us the items of damages disallowed are definitely fixed and determined and the court making the assessment has certified that they were rejected “as a matter of law and not as a matter of discretion,” and the Appellate Division has certified that a question of law has arisen which ought to be determined by this court as to the three items disallowed, thus raising three separate and distinct questions of law as to the items rejected. This conforms to the requirements of the second subdivision of section 190 of the Code of Civil Procedure, which provides for an appeal to this court from a determination of the Appellate Division “ where the Appellate Division allows the same and certifies that one or more questions of law have arisen, which in its opinion ought to be' reviewed by the Court of Appeals.” We, consequently, conclude that the appeal is well taken. The Appellate Division appears to have been of the opinion that the Supreme Court, in assessing the damages under the order of this court awarding judgment absolute in favor of the plaintiff, had the right to try the question'and determine whether tlie plaintiff was entitled to recover under the allegations of its complaint. Had the action been brought to trial upon the issue raised by the answer interposed it is quite possible that it would have been determined that the plaintiff was not entitled to recover, upon its claim for damages in the Appellate Division and Court of Appeals or for its counsel fee and expenses in conducting such appeal. Whether or not the plaintiff would have been entitled to recover those items, or any one of them, would depend upon the facts determined upon such trial. It could not increase the damages of the defendant by interposing a frivolous or unsound defense and then prosecute an appeal from the judgment rendered, unless it was authorized so to do, either expressly *292 or impliedly, by the defendant, its agents or attorneys. But the defendant did not see fit to bring the action to trial upon its answer. It moved for judgment upon the complaint, claiming that it failed to state a cause of action. Upon this it succeeded in the trial court but was defeated in the Appellate Division, and then instead of taking a new'trial under the order of that court it took an appeal to this court, stipulating that in case of an affirmance judgment absolute should go against it. This court did affirm the order and awarded judgment absolute against the defendant. The effect of this was to award to the plaintiff the judgment which it was entitled to upon its complaint without regard to any defense that had been interposed by the answer, and in assessing the damages thereunder the allegations of the complaint were required to be treated as true and the same as if no answer had been interposed. In the case of Bossout v. Rome, W. & O. R. R. Co. (131 N. Y. 37) Peckham, J., says: “The judgment entered upon the filing of the remittitur from this court was an absolute and final one, which fixed, irrevocably, the liability of the defendant to pay the damages sustained by the plaintiff "" *. The effect of the affirmance of the order- granting a new' trial and the entry of judgment absolute thereon in the Supreme Court was the same as if the voliolo of the plaintiff’s action had been admitted and a default had occurred, and the sole question left was as to the amount of the damages sustained by the plaintiff.” Upon awarding judgment absolute in this court against the defendant upon its stipulation, the judgment was remitted to the court below and the assessment of damages had pursuant to the, provisions of section MU- of the Code, which provides that in such a case “ an assessment of damages or any other proceeding requisite to render the judgment effectual may he had in the latter court.” We are of the opinion that the cause of action set forth in the complaint is a breach of contract. The plaintiff, at the request of Kurtz, had executed a bond to the People of *293 the State, as surety, in order to enable him to procure a certificate permitting him to engage in the business of trafficking in liquors. Kurtz thereby is deemed to have agreed with the plaintiff that he would conduct the business in accordance with the requirements of the statute and that he would thereby save the plaintiff from-any liability" on the bond. Kurtz, however, was but an employee of the defendant, who owned the ¡dace and conducted the business of trafficking in liquors therein. His application to the plaintiff to become surety upon the bond ivas on behalf of the defendant, who was the real hut undisclosed principal upon the bond. It is true that Parker, Oh. J., in delivering the opinion of this court, in which the order of the Appellate Division granting a now trial was affirmed (174 N. Y. 486), called certain acts torts and the violators wrongdoers. But in these expressions he had reference to the acts complained of, of maintaining a gambling device upon the premisos in violation of the statute, which was not only a tort but an offense punishable under our penal statute. The very object of the bond required by the People of the State ivas to prevent such acts and to enforce a compliance with its provisions, and the agreement which the principal is deemed to have made with his surety is to the effect that such acts will not he committed and the surety made liable by reason thereof. As avc understand, the rule is elementary that Avhere an undisclosed principal is aftenvards discovered he may he held liable by the plaintiff, at his election, upon the contract of his agent Avhich Avas made Avitli his authority and consent. In the case of Briggs v. Partridge (64 N. Y. 357, 362) Asdrkavs, <T., says: “A principal may he charged upon a Avritton or parol executory contract entered into by an agent in his own name, Avithin his authority, although the name of the principal docs not appear in the instrument, and Avas not disclosed, and the party dealing with the agent supposed that he Avas acting for himself, and this doctrine obtains as well in respect to contracts Avhich are required to be in Avriting, as to those Avhere a Avriting is not essential to their validity.” *294 In the case of Brady v. Nally (151 N. Y. 258, 262) Vann, J., in considering a contract to furnish plumbing material for a schoolhouse, quotes the opinion of Andrews, J., with approval and determines that case in accordance therewith. (See, also, Tew v. Wolfsohn, 174 N. Y. 272; Meeker v. Claghorn, 44 N. Y. 349, and Mechem on Agency, § 695, and' authorities cited in cases referred to.) The cause of action alleged in the complaint, being upon contract, we think the items of damages claimed therein were liquidated and were assessable before the clerk or before the court below, under the provisions of section 194, to which we have called attention. (Bossout v. Rome, W. & O. R. R. Co., supra.) The penalty of the bond, the taxable costs upon the trial, the taxable costs in the Appellate Division and Court of Appeals, which the plaintiff was compelled to pay, were certainly all liquidated items. The other remaining item of damage claimed was the amount that the plaintiff had been" compelled to pay for counsel fee and disbursements in the defense of the case. As to these, section 420 of the Code of Civil Procedure provides that “ judgment may be taken without application to the court, where the complaint sets forth one or more causes of action each consisting of the breach of an express contract- to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only.” Section 1212 of the Code, so far as material to this case, provides that “ in an action specified in section 420 of this act, where the summons was personally served upon the defendant, and a copy of the complaint, or a notice stating the sum of money for which judgment will be taken, was served with the summons; or where the defendant has appeared, but has made default in pleading, the plaintiff may take judgment by default, as follows: (1) If the defendant *295 has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice, and also proof, by affidavit, that the defendant has not appeared; whereupon the clerk must enter final judgment in his favor. (2) If the defendánt has seasonably appeared, but has made default in pleading, the plaintiff must file proof of the service of the summons and of the appearance or of the appearance only, and also proof, by affidavit, of the default; whereupon the clerk must enter final judgment in his favor.” The provisions of the foregoing sections of the Code were under consideration in this court in the case of Bullard v. Sherwood (85 N. Y. 253) in which the action was brought by an attorney to recover for professional services and disbursements, the same as in this action. The complaint in that action, as well as the complaint in this action, was sworn to. The judgment in that case was taken by default. In this case it was taken, as we have seen, upon an order of this court for judgment absolute upon the defendant’s stipulation, in which the damages are assessable the same as if the defendant had made default in pleading. In that case the court held that the damages were assessable by the clerk. Finch, J., in delivering the opinion of the court, says with reference to the judgment, that “ its entry by the clerk was an exact and literal compliance with the provisions of the Code. That directs in a case where application to the court is unnecessary, and where the summons and complaint have been personally served, and the latter is verified, that the judgment be entered for the sum demanded in the complaint. * * * The party, therefore, who makes default in presence of these provisions practically consents to such entry of judgment. He thereby admits that he is indebted in "the full amount claimed and concedes that judgment should be entered for that sum.” For the reason stated, the questions certified should be answered in the affirmative and the order appéaled from reversed and the case remitted to the court below to proceed thereon, with costs to the appellant in all the courts.