Moore v. . Vulcanite Portland Cement Co.

Andrews, J. The complaint alleges that the plaintiff and the defendants Hedden and the Northampton Portland Cement Company (the latter through an assignment from one Dunn), as partners, were interested in a contract made with the Vulcanite Portland. Cement Company for the purchase of cement, and that the latter violated this contract. It, therefore, demands damages. Hedden and the Northampton Company are made defendants because they refuse to join in the action as plaintiffs. The two defendants mentioned unite in an answer denying the partnership, alleging that the transaction was on the plaintiff’s and their joint account, and demanding a judgment in their favor for two-thirds of any amount that the plaintiff might recover in the action. The litigation finally resulted in the dismissal of the complaint and various judgments for costs in favor of the *322 Vulcanite Portland Cement Company against the plaintiff. When it was found that these judgments could not be collected a motion was made to charge the same against Hedden and the Northampton Company on the ground that the action was brought by them and that they were beneficially interested therein. (Code Civ. Pro. § 3247.) Concededly they were so interested. Upon affidavits showing transactions on their part during the pendency of the litigation, and alleged admissions on the part of the said Hedden, all of which would fairly support the inference that the action was so brought, the order was granted. While no findings of fact are contained therein, it must be assumed that the judge at Special Term found them to be as claimed by the moving party. He was fully justified in so doing. The word “brought ” as used in the section quoted should he given a liberal interpretation. Where the commencement of an action is induced by another for his own purposes, it is brought by him. The order so granted was unanimously reversed by the Appellate Division and an appeal was then taken to this court. Upon an appeal from such a reversal of a final order in a special proceeding section 1338 of the Code is applicable. (Code Civ. Pro. § 1361; People ex rel. Manh. Ry. Co. v. Barker, 165 N. Y. 305.) This section provides that upon an appeal to the Court of Appeals from a judgment reversing the determination of a trial court, it must be conclusively presumed that the judgment was not reversed upon a question of fact, unless the particular question or questions of fact upon which the reversal was made are specified and referred to by number or other adequate designation in the body of the judgment appealed from. No such reference is made in the order here to be reviewed. It is true that under section 1237 of the Code the opinion of the Appellate Division is made part of the *323 judgment roll. It is true also that this opinion shows a reversal upon a question of fact. But there is no statement in the body of the order itself complying with section 1338 above referred to. The presumption, therefore, that the reversal was on a question of law is conclusive. This being so the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to the appellant in both courts. Hiscock, Ch. J., Chase, Collin, Oardozo and Pound, JJ., concur; McLaughlin, J., not sitting. Order reversed, etc.