
    George H. Meyers et al., App’lts, v. Lena Stix et al., Impl’d, etc., Resp’ts.
    
      (New York City Court, General Term,
    
    
      Filed March 31, 1894.)
    1. Appeal—Objection.
    Where a question is submitted without objection, and the jury has found against plaintiff, that question is settled and disposed of, so far as the general term is concerned, unless the verdict is against evidence or weight of evidence.
    2. Same—Verdict.
    Though the evidence is conflicting but is sufficient to sustain the finding,, it will not be disturbed.
    
      Charles Meyers, for appl’ts; Samuel W. Weiss for resp’ts.
   McCabthy, J.

The statement of facts as presented by respondent in his brief is a fair , full and concise one. It is as follows : “ This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes. The action is brought to recover for goods sold and delivered by the plaintiffs to defendants. The answer admits, by non-denial, the allegation of the complaint and sets up a release and extinguishment of the demand. The defendants composed the firm of Meyers, Stix & Go., the defendant Elias Meyer being the brother of plaintiffs and of plaintiff’s attorney, the defendant Lena. Stix being the sister of Joseph F. Cullman and Jacob F. Cullman, and the defendant Jacob W. Mayer being the foster brother of said Cullman. ,In the latter part of Í886 defendant’s firm was insolvent. Besides being indebted to the plaintiffs on the demand in suit, they were indebted on two notes respectively for $5,000 and $2,500 made by one Lippman to their order, endorsed by them and held by the Seventh National Bank, on a similar note for $4,000 dollars held by the Mechanics & Traders Bank, and were-further indebted to merchandise creditors. Said Cullman discovered the insolvency of defendants’ firm and intervened to prevent a failure in the family. They caused defendants to return merchandise to such creditors as would accept thereof and to pay balances to such creditors in cash,and this method of liquidation went on until January 22, 1887, when no other creditors would accept merchandise and defendants’ firm had scarcely any assets remaining. On January 22, 1887, the above mentioned indebtedness to plaintiffs and to the banks still existed while the merchandise indebtedness was reduced to about $3,133 making a total of indebtedness of about $15,000. Their assets were then nominally about $6,000. The Cull mans had no pecuniary interest in defendants’ firm, and neither they nor their firm of Cullman & Eosenboom were creditors. They had introduced Meyers, Stix & Co. to the Seventh National Bank, and, on the strengtli of their recommendation, had a credit established for them and felt morally bound to protect the two notes above mentioned, held by that bank. They had not guaranteed these notes. Their relation to these note was duly explained to the attorney for plaintiffs who drew the bill of sale below mentioned. On January 22 or 23, 1887, at the place of business of defendants’ firm, Joseph Cullman met a representative of plaintiff’s who gave the information that plaintiffs were creditors. This representative was offered merchandise in settlement of their claim but insisted on getting the merchandise on a basis of twenty per cent, below cost, and this was refused. Pursuant to an arrangement made with this representative a meeting was held at defendants’ place of business on January 24,1887. There were present at this meeting, the two Cullmans, Abe Meyers (said representative), Geo. H. Meyers, one of the plaintiffs, Charles Meyers, the brother and attorney of plaintiffs, Robert Stix, the husband and representative of the defendant Lena Stix, Jacob W. Mayer, one of the defendants, Elias Meyers, the remaining member of the firm of Meyers, Stix & Co, and Jacob 'Lippman, the bookkeeper of such firm. What occurred at this meeting, is testified to by Joseph F. Cullman, as follows : 111 was asked by Mr. Abe Meyers, ‘ Have you thought of the matter; how can we arrange this.thing; how can they be pulled through? ’ I said, 1 Yes.’ 1 Well,’ says he, 1 How can it be done ? ’ Mr. Abe Myers said that in the presence of George Meyers, Charles Meyers and all the members of the firm; he said ‘ How can it be done?’ I conferred with my brother and turned around to them, all of them, and said, 1 See here, your assets show about $6,000, nominally, we, as you know, are morally responsible for the notes that have been discounted at the Seventh National Bank, if you will transfer to us your assets, we will lift these notes, and release you from all responsibility thereon.’ And then I turned to Meyers brothers and said, ‘ Further than that, if you will relinquish your claim, which is a mere bagatelle, just a trifle, we will pay the balance of their merchandise indebtedness, as it becomes due, and the note of the Mechanics & Traders’ Bank or the accounts, indebtedness, as they will appear on the books.’ Mr. Meyers said, 1 Will you do that ?’ I said, ‘ We will. He said, ‘ If you will do that, we (Meyers Brothers) waive our claim against Meyers, Stix & Co.” This evidence was corroborated by Jacob Cullman, by Robert Stix and by Jacob Lippman. In making this arrangement Abe Meyers acted as spokesman for plaintiffs, and when in consideration of Cullman’s paying the balance of the merchandise indebtedness, he agreed to the release of the plaintiffs’ demand in suit, the plaintiff, George Meyers was present and did not dissent from the arrangement but assented thereto. Abe Meyers reprimanded the members of the firm of Meyers, Stix & Co. for having returned so much merchandise and for having nearly no merchandise indebtedness, and so great an indebtedness to the banks. The drawing of the bill of sale, to effectuate the transfer of assets to the Cullmans, was left to plaintiffs’ attorney. He prepared Exhibit A. It was executed and delivered by defendants on January 25, 1887. Under it, the Gul-Imans took possession of the assets of Meyers, Stix Co, under agreement reached on January 24. The Cullmans paid the two notes held by the Seventh National Bank, the note held by the Mechanics & Traders’ Bank and paid every dollar of merchandise indebtedness (except the plaintiffs’) of Meyers, Stix & Co., as they respectively matured. The Cullmans received from the assets •transferred to them $8,346.64. The branch of the arrangements to take up the notes ($7,500) held by the Seventh National Bank costs them about $4,150. The other branch of the arrangement, for which plaintiffs gave up their claim of about $300, cost them $4,500 for the note held by the Mechanics & Traders’ Bank and $3,133.06 paid merchandise creditors or a total of about $7,600. The total expense they were put to in carrying out the' arrangement was nearly $12,000. They have not had any part of this returned. The plaintiff denied the making of any such agreement and claimed that the defendants were indebted to them. But the learned chief justice submitted the questions of fact to the jury and they rendered a verdict in favor of defendants. The trial justice, having submitted the question of the agreement in his charge without objection, and, again, on request of plaintiffs’ counsel, and the jury having found against the plaintiff, that question is ■settled and disposed of, so far as we are concerned, unless the verdict was against the evidence or weight of evidence. It is clear, from an examination of this appeal, that, although the evidence was conflicting, yet there was sufficient to sustain such finding by the jury. This also applies to the question of performance. As to the questions of law, which means the effect and result of this agreement, we can do no better than to reassert and reaffirm the law as laid down in the able opinion of Bischoff, J., in Meyers v. Stix, 13 N. Y. Supp. 301; 36 St. Rep. 848, which clearly and unmistakably covers this case in every particular. This case needs no better support.

Judgment is, therefore, affirmed, with costs.

YanWyck and Newburger, JJ., concur.  