
    Abraham Picard and Others, Appellants, v. Rosa Lang and Fred W. Lang, Respondents.
    
      Action against a wife as maker and the husband as indorser of a note—counterclaim, interposed by the husband—affirmative judgment in favor-of the husband and wife—remedied upon an appeal, without an exception.
    
    In an action brought to recover uppn a promissory note it appeared that the note was made by the defendant Rosa Lang, was indorsed by the defendant Fred W. Lang, and was by him delivered to the plaintiffs as part payment of the price of a horse which Fred W. Lang had bought- pf the plaintiffs, he having also paid fifty dollars in cash at the time of the sale.
    The defendants answered separately, the husband, Fred W. Lang, setting up a breach of warranty and also a counterclaim, the wife, Rosa Lang, interposing the like answer except that she set up no counterclaim.
    The jury rendered a verdict for both defendants for eighty dollars and thirty cents, and judgment was entered accordingly. There was no request to find made nor any exception to the charge of the judge, but the plaintiff moved for a new trial upon the minutes, and, when this was denied, appealed from the judgment and from the order denying a motion for a new trial.
    
      Held, that as Rosa Lang had interposed no counterclaim, and as the liability of the defendants was several in its nature, the affirmative judgment in favor of both the defendants based upon the counterclaim was improper;
    That the court had power over its judgments and could correct a substantial error, although the error had not been specifically pointed out by an exception, and that the judgment for the counterclaim in favor of the wife should be set aside as not supported by sufficient evidence. ■
    Appeal by the plaintiffs, Abraham Picard and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 23d day of January, 1893, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s • office on the 15th day of May, 1893, denying the plaintiffs’ motion for a new trial made upon the minutes.
    This action was brought upon a promissory note for the payment of the 'sum of $130, with interest, made by the defendant, Rosa Lang, payable to the order of the plaintiffs (appellants) two months after date, the date being the 9th day of December, 1890. This note was indorsed by the defendant Fred W. Lang and delivered to the plaintiffs as part payment upon the purchase of a horse that Fred W. Lang had made of the plaintiffs, fifty dollars being paid by him to the plaintiffs at the time of the purchase. The defendants are husband and wife. The defendants answered separately, the husband, Fred W. Lang, alleging - that, upon the sale, the plaintiffs represented and warranted the horse to be sound and healthy in all respects, without flaw or blemish, and that, relying upon said warranty, he purchased the said horse; that, in fact, the horse was unsound, was lame, and had a disease known as the- side bone, rendering him practically worthless; that he had rescinded the sale and offered to return the horse to the plaintiffs, who had refused to accept him, and further answering that the note was without consideration and void, as it was given for the said horse, and, in addition thereto, that the said defendant paid the said plaintiffs fifty dollars in cash. Further answering, the said defendant alleged that he had suffered damages by reason of the premises and by reason of expenses which he had been put to in consequence of the breach of said warranty, in the sum of $100, for which he demanded judgment against the plaintiffs by way of counterclaim.
    The defendant Rosa Lang interposed the same answer as her husband, except as to the counterclaim.
    The cause Was tried at the Monroe Circuit in January, 1893, before a jury, and the jury rendered a verdict for both defendants in the sum of eighty dollars and thirty cents. The trial court charged the jury that if they rendered a verdict for the plaintiffs, it should be for the amount of the note and interest; if, for the defendants, they were entitled to a verdict for the fifty dollars paid by the defendant Fred W. Lang to the plaintiffs upon the sale of the horse and the interest to the time of the trial.
    The defendants gave evidence tending to show the unsoundness set .forth in their answer, and that in attempting to cure the horse of such unsoundness they (the defendant Fred W. Lang) had expended about twenty-five or thirty dollars, the several items going to make up which were specified in detail. The plaintiffs admitted the making of the warranty as claimed by the defendants, and the only question was whether there had been a breach of that warranty. Upon the coming in of the verdict the court entertained • a motion of the plaintiffs upon the minutes for a new trial, the ground of such motion being upon exceptions taken by the plaintiffs upon the trial, and because the verdict was excessive in amount, and because it was contrary to the evidence, contrary to the law and against the weight of evidence. The court denied the motion for a new trial ' upon the minutes, and from the judgment entered upon the verdict and the order denying the motion for a new trial the plaintiffs appealed.
    
      Cassius C. Davy, for the appellants.
    
      William F. Rampe, for the respondents.
   Ward, J.:

The exceptions taken upon the trial are without merit and need not be considered. The damages awarded by the jury so far as the defendant Fred W. Lang is concerned were not excessive. They were made up of fifty-six dollars and thirty cents, being the fifty dollars paid by the defendant Fred W. Lang to the plaintiffs upon the purchase of the horse and the interest on the same, and a veterinary surgeon’s bill incurred by the defendant Fred W. Lang and medicines procured by him in a proper attempt to remove the disease and cure the horse of the lameness which the jury found existed at the time of the sale. The surgeon’s bill and the medicines amounted to twenty-five or thirty dollars.

The remaining point made by the appellants is that the verdict and judgment in favor of the defendant Rosa Lang in connection with her husband (the other defendant) was erroneous and this presents a serious question. There were no exceptions to the charge of the court or any requests to charge, by either party, so that the charge of the court that a verdict could be rendered for both of the defendants upon the counterclaim was not challenged by any exception of the plaintiffs upon the trial. The correctness of the verdict in favor of the wife was perhaps challenged upon the motion for a new trial upon the minutes. No reason seems to exist why the defendant Rosa Lang, who was in fact a surety upon the noté hi controversy and who had advanced nothing upon this purchase and had suffered no damage by reason of the transaction, should recover damages by way of counterclaim, none being alleged in her answer. Had the attention of the trial court been properly called by the plaintiffs to this matter the court undoubtedly would have instructed the jury that while the defendant Rosa Lang might be relieved altogether from her note, still if the affirmative relief was granted by way of damages and counterclaim the other defendant alone was entitled to it. That was not done, and the question here is whether the plaintiffs can avail themselves of the error committed upon the trial upon this review. •

This court has the power and it is its duty to inspect the whole record and to correct every substantial error which is disclosed by the examination, though not specifically pointed out by exception. (Standard Oil Company v. Amazon Ins. Co., 79 N. Y. 510 ; Mandeville v. Marvin, 30 Hun, 282; Lattimer et al. v. Hill, 8 Hun, 171; Maier v. Homan, et al., 4 Daly, 168; Baylie’s New Trials and Appeals, 125.) And the omission of the defeated party to move for a nonsuit, or to request that a verdict be directed in his favor, or to except to the submission of any particular question to the jury, does not preclude him from moving to set aside the verdict on the minutes of the judge presiding at the trial upon the ground that the evidence was insufficient, or that the verdict was contrary to law, and, I think we may assume, upon any of the other grounds specified in section 999 of the Code of Civil Procedure. (Shearman v. Henderson, 12 Hun, 170 ; Lucas v. McEnerna, 19 id. 14; Tate v. McCormick, 23 id. 218; Kelly v. Frazier, 27 id. 314.)

As no authority seems to exist in the law for this judgment in favor of the wife, Rosa Lang, it must be reversed as to her. There was evidence sufficient to go to the jury upon the question as to the unsoundness of the horse and to sustain the counterclaim alleged by the defendant Fred W. Lang to the extent of the damages awarded by the jury, and the judgment should, therefore, be affirmed as to him.

The power of this court is ample to make such a disposition of the case. (§ 1317 Code Civ. Proc.; Schoonmaker v. Bonnie et al., 3 N. Y. Supp. 492 ; Simar & Another v. Canaday, 53 N. Y. 298.)

Judgment directed as recommended in the memorandum herein of Hardin, P. J.

All- concurred.

Hardin, P. J.

From the pleadings and from the evidence offered at the trial it is apparent that the female defendant executed her promissory note to the order of her husband, the male defendant, and that he indorsed the same and used it in consummating the purchase from the plaintiffs of a horse at the price of $180, delivering simultaneously with the note of $130, so made and indorsed, the sum of $50 in full payment for the horse so purchased. The note is not set out in the appeal book.

The evidence satisfactorily established the fact that the male defendant was the purchaser of the horse, and entered into the contract with the plaintiffs, which was consummated by the delivery of the note and the fifty dollars. It is very apparent that the warranty of the horse, disclosed by the evidence,. ran to the male defendant. In his answer there is a counterclaim set up in connection with the averment of a breach of the warranty made by the plaintiffs at the time of the sale of the horse. The evidence given at the trial satisfactorily establishes the warranty; and it also presented a question of fact for the jury to determine as to what damages the male defendant had suffered. Evidently the jury were of tlie opinion that the note on which the plaintiffs counted was without consideration, and that the male defendant was entitled to recover back the money which he had paid, to wit, fifty dollars and the interest. thereon, and was also entitled to receive damages by reason of the breach of the contract of warranty: Apparently the Circuit judge, in delivering his charge, failed to discover that there was not any counterclaim set up in the answer of the female defendant. The evidence does not disclose that any counterclaim existed in her behalf. The evidence does disclose that it exists in behalf of the male defendant. Inasmuch as his liability was a several liability, it was competent for him to setup a defense which should extinguish the cause of action relied upon by the plaintiffs, as well as to set up a counterclaim by virtue of a contract of warranty which ran from the plaintiffs to him. There is nothing in the case to indicate any right in the female defendant to enforce a counterclaim. It seems to be erroneous to allow the female defendant to recover damages upon a contract to which she was not a party, or to recover upon a counterclaim which she has not set up in her answer. (Spofford v. Rowan, 124 N. Y. 108; Halliburton v. Clapp, 36 N. Y. Supp. 1041.)

Although there was no motion for a nonsuit or for the direction of a verdict, or exception to the charge delivered by the judge, it was in the power of the court; upon a motion for a new trial made Upon the minutes, to direct such judgment as, upon the evidence and the pleadings and the verdict, was proper, Such omissions do not prevent the party from moving to set aside the verdict as being “ founded on insufficient evidence.” : (Shearman v. Henderson, 12 Hun, 170 ; S, C., approved and followed in Lucas v. McEnerna, 19 id. 16.)

It is competent for- this court to make such an order in reviewing the motion for a new trial made upon theminu-tes as, might have been made by that court. ■ It seems, under the circumstances of this, case, as now presented, that the judgment as to the male defendant should be affirmed, with costs; and the judgment modified as to the female defendant by striking therefrom the award of damages in favor of the female defendant, and. directing that the complaint as to the-female defendant be dismissed, and that such modification be made without costs of the appeal to either the plaintiffs or the female-defendant. (Code Civ. Proc. § 1317; Altman v. Hofeller, 83 Hun, 429; Goodsell v. W. U. Tel. Co., 109 N, Y. 147; Petrie v. Williams, 68 Hun, 597.)

' Judgment as to Fred W. Lang affirmed, with costs, ana the judgment as to Rosa Lang modified by striking therefrom the award of damages in her favor, and directing the complaint as to her to be dismissed, and the judgment as so modified as to her is affirmed, without costs to her or to the. plaintiffs.

Judgment as to Fred W. Lang affirmed, with costs, and the judgment' as to Rosa Lang modified by striking therefrom the award of ' damages in her favor and directing the complaint as to her to be dismissed, and the judgment as so- modified as to her is affirmed, without costs to her or to the plaintiffi  