When this case was previously before the general term, (15 H. Y. St. Rep. 310,) it was held that the instruments in question were free from the taint of duress, and that the plaintiff had fully recognized their validity. The same conclusion was arrived at upon the present trial, and the evidence again amply supports it. The new trial was ordered upon the sole-ground that the ease showed a want of consideration for the original note and-*140mortgage renewed by the instruments in suit. This consideration was clearly shown upon the trial now under review. There was sufficient evidence, both direct and circumstantial, of the arrest of the plaintiff’s husband. The surrounding circumstances, too, all point in that direction. The arrest was lawful, and the defendant’s testator was guilty of no impropriety with regard to it. The plaintiff was not appealed to by the defendant’s testator to secure her husband’s release, nor was she subjected to anything in the nature of duress •or threat. On the contrary, she voluntarily requested Mr. Ford’s attorney to accept her obligation in settlement of the suit. This was acceded to, the consideration being the release of her husband and the discontinuance of the suit. The attorney, in compliance with this agreement, filed a consent of discontinuance with the clerk, and the plaintiff’s husband was released from any restraint attaching to the order of arrest. The fact that a judge’s fiat to an order of discontinuance was not obtained does not affect the question. Mr. Ford’s attorney was not bound to enter such an order. When he delivered or filed the consent of discontinuance the consideration was complete. Van Campen’s attorney could at anytime thereafter have entered the formal order. The consent was irrevocable, and could not be withdrawn. It remained in •the clerk’s office to the use of Van Campen. Ford had received a valuable consideration therefor, namely, the plaintiff's note and mortgage, and the suit against Van Campen was thereupon substantially discontinued. It would have been impossible for Ford to have taken any step against Van Campen thereafter. The court would have promptly checked any attempt to proceed further, .and would at once have directed the discontinuance of record. It is quite clear, therefore, that the difficulty which led to the previous reversal has been removed, and that the present judgment should be affirmed. The objections .and exceptions taken by the plaintiff to the admission of evidence were either frivolous or directed to unimportant matters in no way prejudicial to her upon the main issues. Some of these objections related to the contents of papers which had been intrusted to the plaintiff’s attorney, and had never been returned. They should not have been made, under such circumstances, and the persistent effort to suppress important features of these papers does not tend to inspire the court with confidence in the sincerity or good faith of the plaintiff’s contention. The judgment should be affirmed, with costs. All .concur.
Van Campen v. Ford.
(Supreme Court, General Term, First Department.
July 9, 1889.)
Contracts—Consideration—Discontinuance oe Suit.
Where the consideration for a note and mortgage was the release of plaintiff’s’ husband from arrest, and an agreement to discontinue a pending suit against him, and a consent of discontinuance was filed with the clerk by the creditor’s attorney, and plaintiff’s husband was released, the fact that no formal order of discontinuance was made by the court is immaterial, as the suit was effectually at an end by virtue of the consent.
Appeal from special term, Hew York county.
Action to set aside a note and mortgage executed by the plaintiff, Mary R. Van Campen, as security for the payment of bonds of defendant’s testator, claimed to have been embezzled by plaintiff’s husband, Samuel R Van Campen. The action was tried at special term in June, 1887, and a decision rendered for defendant, upon the ground that plaintiff, long after making the' note and mortgage, had recognized defendant’s rights thereunder, by giving a renewal note and mortgage therefor. An appeal was taken to the general term, and the judgment was reversed, and a new trial ordered. 48 Hun, 614, mem. The case was again tried in October, 1888, before Mr. Justice-Andrews, and judgment directed for defendant. The original claim of defendant’s testator, Joseph T. Ford, was against Samuel R Van Campen, for the recovery of four $500 United States government bonds, whicli had been intrusted to the keeping of Van Campen, who was president of a bank at Elmira, H. Y., and which bonds he had converted to his own use. In 1878 an action was begun by defendant’s testator against Van Campen. Subsequently, Hovember 15, 1878, at the instigation of defendant’s testator, Van Campen was arrested by the sheriff of Hew York county. The evidence tended to show that while under arrest at this time Van Campen requested his wife to relieve him from such arrest by settling the claim and action then pending against him, and that at his request plaintiff made to A. H. Rounsevell, Ford’s attorney, a proposition of settlement, which was to give the note and execute the mortgage involved in this suit, the consideration for which was the release from arrest of Van Campen, and the discontinuance of the suit against him. That action was accordingly discontinued, but no-formal order of discontinuance was made by the court. Plaintiff appeals from the judgment.
Argued before Van Brxjnt, P. J., and Daniels and Barrett, JJ.
Thomas O' Callaghan, (Henry Daily, Jr., of counsel,) for appellant. Clarence M. Smith, (James R. Angel, of counsel,) for respondent.
Case Details
6 N.Y.S. 139
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