
    Bantle v. Krebs.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Trial by Jury—Estoppel.
    Where both parties insist at the trial that a case shall be disposed of by the court, they cannot afterwards object that the case should have been submitted to the jury on any question of fact.
    Appeal from circuit court, Hew York county.
    Action by Conrad Bantle to recover of the defendant, Barbara Krebs, the amount of two judgments recovered by him in the court of common pleas. The actions were commenced in a district court, and, the claims being more than $100, application was made to remove them to the court of common pleas. On the application the defendant and one Ignatz Martin executed an undertaking to procure the removal. The actions were removed, and plaintiff recovered judgment. A stipulation was entered into by which plaintiff agreed to accept $300 in payment of both judgments, $100 to be paid at the time, $100 to be paid in three months by a note made payable at 265 Central avenue, Brooklyn, and $100 in six months by a note payable at same place. Stipulation further provides that if the notes, or either of them, are not paid on the days when they become due, the amount paid under the stipulation, or on the notes after that date, should be simply credited on the amounts of the judgments. On the same day certificates of satisfaction of the judgments were executed and held by plaintiff’s attorney, subject to the compliance by judgment debtors with the stipulation. On same day a general release was executed by Ignatz Martin in favor of the plaintiff, and delivered to the plaintiff’s attorney. On October 16, 1886, the first note became due. It was presented for payment, and was protested for non-payment. On the same date Ignatz Martin, Jr., called at office of plaintiff's attorney to pay the note, as be says, which, however, was presented at 265 Central avenue, Brooklyn, where the same was payable. On October 18, 1886, plaintiff’s attorney notified Ignatz Martin, Jr., that he elects to avail himself of the option reserved in the stipulation, and that he will receive payment of the notes on account of the judgments generally. In the same letter plaintiff’s attorney returns to Ignatz Martin, Jr., the general release executed by him. The second note was paid at maturity, and at no time after payment of the two notes was any demand made upon plaintiff’s attorney for the certificate of satisfaction executed on July 12, 1886. Nor was any effort made to compel the delivery of the certificates by an application to the court of common pleas, which court would have authority to enforce the stipulation. And it is further in evidence without dispute that the release was received by Ignatz Martin, Jr., and was retained by him. On the trial defendant was granted the affirmative, and proved the payments of the notes as above stated. The receipt of the release by Ignatz Martin was admitted. The mailing of the letter of October 18th, in which plaintiff’s attorney states that he avails himself of the option given in the stipulation, was not disputed, and both parties asked for the direction of a verdict. The court directed it in favor of defendant, and plaintiff excepted.
    
      Henry Wehle, for appellant. Lorenzo Lovejoy, {William B. Hurd, Jr., of counsel,) for respondent.
   Daniels, J.

Both parties insisted at the trial that this action should be disposed of by the court. They in that way deprived themselves of the right afterwards to claim that the case should on any question of fact have been submitted to the jury; and for its disposition the court could very well conclude from the evidence of Martin, the principal debtor, that he offered to pay the note to Mr. Wehle, the attorney having charge of the business for the plaintiff, on the 15th. ■ Also that he called at his office on the 16th of October, the last day of grace, to pay the note. And in addition to that fact, that the note had in fact been paid, the court could assume from the evidence that the money had been offered and finally accepted on the note, and that the plaintiff should not be permitted to maintain the action, which was a sharp device to avoid the effect of the settlement. The justice of the case is with the defendant, and an order to shoew cause why there shall not be a reargument should be refused.  