
    Alexander J. Hamrah and Peter J. Hamrah, Respondents, v. N. N. Maloof & Company, Appellant.
    Second Department,
    June 29, 1908.
    Appeal from judgment — questions raised after motions for direction of verdict and nonsuit — sale of smuggled goods — confiscation by government — right of buyer to recover purchase money— estoppel — restitution.
    Although a defendant moved for a new trial upon the minutes, if there be no appeal from the order denying that motion, the case comes before the Appellate Division upon the judgment only.
    If a defendant moves for a nonsuit and the plaintiff for a direction of verdict, there is a waiver of the right to go to the jury, and the verdict rests upon the same foundation as though the facts were found by the jury.
    Where a defendant merely asks to go to the jury on specific questions after the denial of his motion for a nonsuit, he is deemed to have waived the right to go to the jury on the other questions in the case.
    Where, after a sale of goods, they are seized by the Federal government for nonpayment of import duties by the seller, the buyer by appearing in the proceeding to condemn the goods and claiming title is not estopped from rescinding the sale and recovering the purchase price from the seller where the buyer notified the seller of the proceeding and the latter employed an attorney to defend the goods.
    
      Where tfie buyer paid for the goods with checks and notes without knowledge of the fact that they were smuggled, the payment was not voluntary so as to defeat a recovery, although he subsequently paid the notes to the transferee of the buyer.
    Where such goods have been seized and condemned by the Federal government, the buyer need not offer restitution in order to recover the purchase price.
    Appeal by the. defendant, ÜF. H. Mhloof & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 8th day of January, 1908, upon the verdict of a jury" rendered by direction of the court after a trial at the Kings County Trial Term.
    
      Cornelius Huth, for the appellant.
    
      Holmes V. M. Dennis, Jr., and Joseph S. Buhler, for the respondents.
   Woodward, J.:

The defendant, although moving for a new trial upon the minutes, does not appeal from the order denying such motion, so that this' case is before us only upon the judgment. The facts are comparatively simple. The plaintiffs concededly purchased certain. laces from the defendant, who had the goods in its possession at the time of such sale, arid the plaintiffs paid for such goods in checks and notes, which notes were subsequéntly indorsed 'to third parties and paid by the plaintiffs, in the sum of §51,730.65. After the goods had been in the possession of the plaintiffs for about one month they were seized by the United States government, for the non-payment of import duties, and upon due proceedings the‘goods were condemned and confiscated by the United States. In the proceedings the plaintiffs were claimants, and notified the defendant, who appeared in the matter and defended through an attorney. H. H. . Maloof, the defendant’s treasurer and manager, entered into a written stipulation to .make good the loss óf the plaintiffs in the event of the goods being confiscated, and the plaintiffs, who had permitted one of the notes to go to protest, paid the' same and subse- . quently paid the series, not to the defendant but to third parties to whom the same had been, transferred. , After the judgment on confiscation had been entered, depriving the plaintiffs of their goods, they brought this aótion for moneys had and received, and upon the trial the learned court directed a verdict for the plaintiffs for the amount of their claim. The defendant, at the same time, moved for the dismissal of the complaint, and upon the denial of this motion asked to go to the jury on certain specific propositions. This being denied, the court then directed the verdict, and the defendant excepted to the direction. There was no request' to go to the jury upen the whole case, and, as we understand the rule, upon an appeal from the judgment, if there was no question for the jury upon the' matters as to which there was a request, the remaining questions would be disposed of by the court with the same force and éffect as though the jury had been called upon to determine the issues. That is, both parties asking for the direction of a verdict, or one of them for a nonsuit and the other for the direction of a verdict, the rule is the same in reference to "the waiver of the jury (Adams v. Roscoe Lumber Co., 159 N. Y. 176 ; Trimble v. N. Y. C. & H. R. R. R. Co., 162 id. 84), they waive the right to the 'jury ( Westervelt v. Phelps, 171 id. 212), and the verdict rests upon the same foundation as though the facts were found by a jury. (Smith v. Weston, 159 N. Y. 194.) Obviously where the defendant merely asks to go to the jury on specific facts, after the denial of his motion for a nonsuit, he is deemed to have waived the right to go to the jury on the other .facts remaining in the case. In this case, as we read the record, the only possible issue of fact would be as to the credibility of one of the plaintiffs as a witness, he being an interested party, testifying to the identity of the goods which were seized by the government, and upon this point there was no request to go to the jury.- Indeed, there was little room for doubt as to the identity of the goods; there was no dispute of .plaintiffs’ evidence, it was not inherently improbable, and there- was nothing in the case, to justify an assumption that the testimony of the plaintiff Alexander J. Hamrah was not truthful.

Th,e appellant urges that as the plaintiffs appeared in the proceeding to condemn the goods, and claimed title to them, that they are now estopped to rescind the contract and demand the repayment of the money. But we are of the opinion that the rule'invoked -has no foundation in reason as applied to this casé. The government of the United States reaches the goods; they did belong to the plaintiffs as against all the world, subject only to the right of the govern-meat to reach them for the non-payment of duties. The plaintiffs claimed them, notifying the defendant of the claim of the government, and the defendant employed' an attorney to defend the goods. How this could operate to estop the plaintiffs to reclaim their money when it was established that the defendant had failed to pay the duties is not at all clear to us, and we are of the opinion that it is without merit.

The defendant likewise invokes the rule against' the recovery of voluntary payments made With a knowledge of the facts. But this case is not within.that rulé; the plaintiffs made payment by checks and by notes. The checks were paid at once, without' any knowledge of the facts, and the notes were transferred by the defendant to third parties, thus cutting the plaintiffs, off from any defense to their payment. To say that the payment of these notes, thus situated, was a voluntary payment of the money to the defendant, knowing all the facts, is to go beyond any rule of law with which we are familiar, for the purpose of working an obvious injustice. There is no doubt of the rule, asserted with a profusion of authorities, but it has no application, to the facts in this case.

Equally without merit is the suggestion. that the plaintiffs are weak in their case because they have not offered to restore the goods to the defendant. The goods were taken from the plaintiffs because of the wrong committed by the defendant in importing these goods without the payment of duties, and the suggestion that the plaintiffs have failed in any equitable consideration is little less than an impertinence.

An examination of the conceded facts in this case — and even defendant practically admits that the plaintiffs are entitled to some remedy — convinces us that the judgment rests firmly upon the facts and the law, and that it should be affirmed by this court,

■ The judgment appealed from should be affirmed, with costs.

Jenks, Hooker, Gayhor and Miller, JJ., concurred.

Judgment affirmed, with costs.  