
    WILLIAM E. COFFIN, et al., Respondents v. THE PRESIDENT AND DIRECTORS OF THE GRAND RAPIDS HYDRAULIC COMPANY, Appellant.
    
      Promissory notes, defences thereto.
    
    Three actions, to recover on three promissory notes, the facts in each of which are similar, so that all the questions involved in the three cases are considered and disposed of by a decision in one.
    
      Held, that the issues in these actions were simple, and all the complications arose from the efforts of the defendant to present facts and questions in defence of the action that are not raised by the pleadings nor germane to the controversy before the court, yet requiring the court to state all the issues raised and the points claimed by the defence, that the propositions involved may be intelligently considered and understood.
    After such statement, and a full review of the facts and points, the court held, that the plea of payment and satisfaction set up in the answer was not proved, and apart from the complications of fact and law, thrown into the case by the defendant, there does not seem to have been a shadow of a defence established.
    The objection that the plaintiff could not maintain the action is untenable. If the defendant intended to raise the objection that the plaintiffs were not the real parties in interest, it should have been pleaded in defence. There was no real substantial or meritorious defence to the action, and the verdict directed by the court in each case merely gives effect to the legal rights and obligations of the parties.
    Before Sedgwick, Ch. J., and McAdam, J.
    
      Decided May 2, 1892.
    There are three actions, the facts in each of which are similar, except, as to date of the obligation, time when due, amount, and parties plaintiff, so that the questions involved in the three cases may be disposed of by the decision of one. The trial judge directed verdicts in favor of the plaintiffs. In the first action for $83,096. In the second for $34,860, and in third for $1,985.40. The defendant appeals from the judgments entered on the verdicts, and from orders denying motions for a new trial. The opinion will be directed to the facts presented by the record in the first action, as the disposition made of that disposes of the other two appeals.
    
      E. T. Lovatt, attorney, and Frederick R. Coudert and David Keane of counsel, for appellant, argued.
    I. The plaintiffs were not in a position to sue or successfully maintain an action upon the note herein, since they had not averred nor proved the performance of the condition precedent contained in said note. The condition precedent in the note: “One month after date, and upon the return of security given, we promise to pay Coffin & Stanton, agents, etc.,” imposed upon the plaintiffs the duty of alleging and the burden of proving that they had offered to u return ” the “ security given or had returned the same.” Plaintiffs failed to do either; hence the action would not lie and the court should have granted the motion to dismiss the complaint. If the payment of the note is “ conditional, maturity arrived upon the performance of the condition.” 2 Am. and Eng. Ency. of Law, p. 397; Henry v. Coleman, 5 Vt., 402; Brewster v. Williams, 2 So. Car., 455; McNinch v. Ramsey, 66 No. Car., 400. This is not a negotiable promissory note, hut is a conditional promise or agreement, and performance must be alleged and proved or the action will not lie. u Where the c certificate is payable on the return of i this certificate,’ it is negotiable, because that merely requires, as in case of any note, the return of the evidence of debt (Frank v. Wessels, 64 N. Y., 158); but if there be added 6 and the return of my guaranty of a certain note ’ it would en-graft a Collateral condition which would defeat the negotiability of the instrument.” Vol. 1, Daniel on Neg. Instr., § 45; Cushman v. Haynes, 20 Pick., 132; Tooker v. Arnoux, 76 N. Y., 397; Benedict v. Cowden, 49 Ib., 396; Smilie v. Stevens, 39 Vt., 316; Blood v. Northrup,. 1 Kansas, 29. “ The acceptors could not take up the
    note until it was presented, nor were they bound to pay the money till the plaintiff was ready, and offered to enable them to take up the note. It seems to me, therefore, that substantially this instrument is payable upon a contingency, and is the same as if it had said ‘ Pay W. C. $400 on his giving up our note/ etc. Had such been the form it would clearly not be technically a bill of exchange. The holder, in declaring upon it, should aver his readiness to deliver up the note.” Cook v. Satterlee. 6 Cow., 109. “ An instrument, by which an individual, ninety days after the dissolution of the copartnership between C. & P. and the settling of the books of the said firm, promises, in behalf of P., to pay to C. $550, the interest to be paid annually by P., is not a promissory note; it being payable after the happening of two events, one of which—viz., the settling of the books—may never happen. Such an instrument is an agreement.” Sackett v. Palmer, 25 Barb., 179. u Note payable ‘ when all appeals shall have been disposed of and the right to appeal has expired/ in a certain action, is not due while there is a possibility of judgment which might be the subject of an appeal.” Clute v. McCrea, 12 N. Y. St. Rep., 648. “ An accepted order for the payment of money forty days after date, ‘ on account of contract when completed and satisfactory/ is not a bill of exchange absolutely payable at the end of forty days whether the work is completed or not.” Home Bank v. Drumgool, 109 N. Y., 63. “ A writing in the form of a promissory note was endorsed ‘ The within to be paid when M. pays the note of $70 to L. or bearer, dated Dec. 19, 1878.’ Held, that the instrument was not a promissory note, but a mere conditional promise.” Stout 
      v. Liddell, 20 Week. Dig., 247; Van Wagner v. Terrett, 27 Barb., 181; Seacord v. Burling, 5 Den., 444; Austin v. Burns, 16 Barb., 643; Costello v. Crowell, 127 Mass., 293; Crippen v. Rowley, 2 Albany L. J., 394; James v. Hagan, 1 Daly, 517.
    II. Before suit could have been maintained by plaintiffs, defendant had the option to pay said note upon one of two conditions arising’ from the acts of the plaintiffs, to wit: (a.) “ Upon the return of or offer to return the security given,” etc.; or (b.) “In case of deficiency to pay the said Coffin & Stanton, agents, the amounts thereof forthwith after such sale, with legal interest.” Neither of these contingencies had happened, and the burden of causing them to happen rested upon the plaintiff ; hence the time for payment had not arrived. Therefore this action was prematurely brought and the judgment should be reversed. “ The promissor had the right of election to pay at either time specified.” Sackett v. Palmer, 25 Barb., 182.
    III. The note and the syndicate agreement, exhibit “ A ” were contemporaneous papers, and must be read and construed together; and the court erred in refusing to allow exhibit “A” to be read in evidence, since, in addition to the testimony, Mr. Norwood admitted that this note was the one referred to in said agreement. “ Note and contemporaneous paper must be read together.” Watson v. Blossom, 18 N. Y. St. Rep., 726; Benedict v. Cowden, 49 N. Y., 396 ; Dinsmore v. Duncan, 57 Ib., 573, 579. The syndicate agreement, exhibit “ A, ” which explains and sets forth the note sued on in this action, and which was only made, executed and delivered by virtue of said agreement, was as much a part of it as the agreement itself. There can be no question that this required the trial court to have them both read together. Rogers v. Smith, 47 N. Y., 324. “ Where two instruments are intended to embody a contract between the parties they must be read and construed together.” Knowles v. Toone, 96 N. Y., 534; Marsh v. Dodge, 66 Ib., 537. This syndicate agreement being fully set forth in the answer, it would not be considered a proper thing to plead the legal effect of the agreement or the conclusions of law to be derived therefrom, or the legal theory upon which the defendant based its defence. The agreement having been pleaded gave the right to put it in evidence, and then the right to ask the court to give it due effect. Springer v. Dwyer, 50 N. Y., 19 ; Hemmingway v. Poucher, 98 Ib., 281; Trimble v. Stillwell, 4 E. D. Smith, 512. It having been admitted by plaintiffs’ counsel and proven by the defendant’s witness, Mr. Crow, “ that is the note mentioned and referred to in the syndicate agreement marked ‘ Defendant’s Exhibit A, for identification,’ ” the court was bound to receive said exhibit “ A ” in evidence as the note and syndicate agreement were part and parcel of the same transaction, and one without the other would be incomplete. It was the duty of the trial court to have permitted the “ syndicate agreement ” to have been read in evidence, since that was the only way in which the court and jury could have arrived at what the transactions were between the parties. The importance of this “ syndicate agreement ” will be apparent to this court by reading the following extracts therefrom, to wit: “ In the event of the non-purchase of the water-works system of the city of Grand Rapids, Mich., and non-payment of the notes by the Grand Rapids Hydraulic Company or its assigns, then the syndicate shall act as a unit for their mutual interests. It is also agreed that each firm or individual signing this agreement shall take up, pay for and carry their or his proportionate amount of loan made to, and bonds purchased of, said The Grand Rapids Hydraulic Company, as stated herein.” To more clearly outline the position of the defendant I now refer your Honors to its answer. I quote from the case; “ And that the said note was not made otherwise than under the said agreement, and that it was only delivered to the plaintiffs under and pursuant to the terms of said agreement hereinbefore referred to and marked ‘ exhibit A.’ That the plaintiffs are not entitled to maintain this action under the terms of the said agreement i exhibit A,’ hereto annexed, but have brought and are prosecuting this action in violation of the terms of said ‘ exhibit A ’ and of the agreement made and signed by all of the plaintiffs on June 11, 1890.” These allegations in the answer make an issue which can be explained or understood only when the said “ exhibit A ” has been read in evidence (which was not permitted by the court below). Tour Honors will observe, “ that each firm or individual signing this agreement (exhibit A) shall take up, pay for and carry their or his proportionate amount of loan made to, and bonds purchased of,” etc. This they did not do, and defendant claims that this action cannot he maintained between the original parties, since it was the plaintiffs’ duty, they being members of the syndicate, to u take up, pay for and carry their proportionate amount of said loan,” and, .therefore, they had no right to sue.
    IV., The plaintiffs had no right to sue upon this note, as they were not the principals ; they were simply the agents of the syndicate, which consisted of five individuals and firms, and the action should have been in the names of the several members of the syndicate, or as .agents of the said syndicate, if they had such authority. .And the court in excluding evidence upon this proposition erred.
    , V. The court erred in refusing to receive exhibit A .(syndicate agreement) in evidence after plaintiff’s counsel had used it in cross-examination. The court had heretofore refused the defendant the right to use it as evidence ; but now the plaintiff having used it, referred to it, and had testimony given from it, as a matter of law we had a right to read it in evidence.
    
      VI. The court did not properly exercise its discretion when it refused defendant permission to amend its answer at the trial. “ Mr. Briggs : I move for leave to amend the answer, under the ruling of the court, upon such terms as your Honor shall deem proper to impose.” Then follows the proposed amendments and a renewal of the offer. It does not seem as if it was an exercise of sound discretion or in furtherance of justice to refuse such amendments as were requested. Certainly defendant’s counsel could not suggest or offer anything fairer than he did. He was perfectly willing to accept such terms as the court might impose and on such conditions, no matter what they were. That the court had the power to grant the amendment asked cannot he disputed, and it should have done it. “ The court must, upon application, allow a pleading to he amended at any time during the pendency of the action, even on appeal, if substantial justice will be promoted thereby,” etc. Enright v. Seymour, 8 N. Y. St. R., 356 ; Hunter v. Hudson R. I. & M. Co., 20 Barb., 493.
    VII. This action could not be maintained by the plaintiffs as against the defendant, since they were not the owners of the note,, nor were they entitled to the full amount, their interest being* only “ three-fifths,” and it was error for the court to direct a verdict in their favor for the full amount against defendant’s objection. It appears from the testimony in this action that Moses R. Crow was the owner of one-fifth interest in this note and in the syndicate agreement, and that he had advanced one-fifth of said loan of $100,000. D. F. Cameron had signed said syndicate agreement for one-fifth, and had assigned his interest to Moses R. Crow, and the plaintiffs herein recognized Mr. Crow as assignee of such one-fifth. With these facts undisputed how can this judgment stand ? By what right or authority can a judgment of $1,985.40 be directed against us, when all the interest that the plaintiffs had therein was three-fifths. If they were entitled to anything it would be a judgment for only three-fifths of the sum claimed.
    
      Norwood & Coggeshall, attorneys, and Carlisle Norwood of counsel, for respondents.
   By the Court.—McAdam, J.

The issues were enough, and the complications attempted to be interjected into the case arise from an effort on the part of the defendant to litigate questions not raised by the pleadings nor germane to the controversy, before the court. This circumstance requires us to state the issues raised, that the propositions involved maybe intelligently understood.

The complaint alleges three causes of action, each based upon a promissory note.

The copartnership of the plaintiffs as bankers in the city of New York, under the firm name of Coffin & Stanton, was alleged and admitted by non-denial. The complaint then alleged that the defendant was and is a foreign corporation, duly incorporated under the laws of the State of Michigan, and that its principal place of business is at Grand Rapids, in that State. These allegations were also admitted by non-denial. Then the complaint alleges, as the first cause of action, that on or about the 15th day of May, 1889, the defendant, at the city of New York, made its certain promissory note in writing, whereby it promised, one year after date, to -pay Coffin & Stanton, agents, etc. (the plaintiffs), or order, the sum of thirty thousand dollars, with interest at six per cent, per annum, and that the defendant duly delivered said note to the plaintiffs.

The amended answer expressly admitted the making of the note described in paragraph fourth of the first cause of action,” but alleged as new matter that the same was made and delivered pursuant to an agreement between the plaintiff and defendant April 12, 1889, known as the syndicate ” agreement, a copy of which is annexed to and made part of the answer.

The amended answer then alleged that the note was not delivered to the plaintiffs other than as copartners or members of a syndicate as mentioned and set forth in said agreement and that the plaintiffs are not entitled to maintain this suit on said note for the reason that the same has been satisfied and paid, and should be delivered up and canceled to the defendant, and that the said note was not made otherwise than under the said agreement and that it was only delivered to the plaintiffs under and pursuant to the terms of said agreement therein before referred to. The complaint contained similar allegations as to the second and third causes of action. The admissions, denials and new matter in the defenddant’s amended answer relating to the second and third causes of action, are the same as those affecting the first cause of action.

The amended answer then alleges additional matter by way of defence, to the several causes of action, reiterating the defence of payment and satisfaction, and further stating that the plaintiffs by an instrument in writing, bearing date J une 11, 1890, known as the bondholders’ ” agreement, agreed to surrender and cancel said notes, and were given and allowed full satisfaction and payment therefor pursuant to such agreement, but they had failed, neglected and refused to deliver the notes and had wrongfully brought this action in violation of the terms and conditions of said agreement, a copy of which is also annexed to and made part of the answer.

The amended answer then alleges that the defendant fully carried out and performed all the parts of the syndicate agreement ” binding or obligatory upon the defendant up to the date of the commencement .of the action, but that the plaintiffs herein failed to perform and carry out the parts of the agreement binding and obligatory upon them to the damage of the defendant, etc.

As an offset and counterclaim, the amended answer further alleges that pursuant to the syndicate ” agreement and the bondholders’ ” agreement, the plaintiffs became bound unto and liable to the defendant to account for the funds and property of this defendant in the hands of the plaintiffs to the value of upwards of sixty thousand dollars; that plaintiffs, although the defendant has duly demanded such accounting, have failed and neglected to make the same or cause the same to be made; that on such accounting the plaintiffs should be adjudged and ordered to deliver over to the defendant herein the notes sued in this action and such cash and bonds received by the plaintiffs and withheld from this defendant after demand as may be found or decreed to be in the hands of or withheld by the said plaintiffs from this defendant. These allegations were controverted by the reply.

The amended answer also alleged that by reason of the failure of the plaintiffs to carry out their part of the syndicate ” agreement, the defendant had suffered loss, damage and expense for which the plaintiffs are liable to the defendant under said agreement and under the bondholders’ ” agreement. This matter was controverted by the reply.

Judgment was prayed for dismissing the complaint; for an accounting; and for whatever might be found due upon such accounting, and for sixty thousand dollars damages.

The plaintiffs proved the interest on the several notes, and rested their case. The defendant then moved to dismiss the complaint, on the ground that the execution of the notes sued upon was not proved. The court inquired if the defendant did not admit the making of the notes, to which the defendant’s counsel replied, that it admitted the notes were made subject to the two agreements mentioned, and the court properly held, that as they were not referred to in the complaint, but were pleaded in defence, the onus of proving the agreements was on the defendant.

The defendant then offered in evidence, the syndicate ” agreement. Its execution was admitted, but it was excluded for the reason that it contained nothing that operated as a bar to the action, and was therefore immaterial. The “ bondholders’ ” agreement was next offered in evidence and excluded as irrelevant and immaterial, and as not sufficiently proven. These rulings were proper.

First. Als to syndicate agreement. The parties thereto are the defendant-company on the one part, and a syndicate, composed of the plaintiffs, together with Stanton D. Loring, of Boston, Mass.; Woodbury & Moulton, of Portland, Me.; Eliott, Johnson & Co., of Wilmington, Del.; and Duncan F. Cameron, of New York; of the second part. The agreement was not merely joint as to the syndicate, but several for the respective interests or amounts, for which they (the members) severally signed their names.” The syndicate agreed to loan the defendant one hundred thousand dollars on its notes as specified therein. The notes in this and the two other suits are the notes given on the loan, and aggregate the entire amount thereof. There is no claim that the moneys thereon were not advanced, nor the sums claimed actually due, if the terms of the notes are to control the time of payment. That they were to control (subject to certain contingencies that have not happened) is apparent. The agreement provides that the notes are to run one year ” at six per cent, interest, with two hundred thousand dollars par value of the bonds of the company attached thereto .as collateral. The notes were the principal obligation, tíre bonds merely incidents in the nature of security for their payment.

The defendant had the liberty of substituting as collateral for the notes, a certain new contemplated issue of bonds, and the syndicate was to take such new issue, and pay for the same at ninety cents on the dollar, at or before the maturity of the loan. This portion of the agreement did not become operative, because the new mortgage was not made, nor the new bonds issued, so that this phase of the case need not be pursued. So with other provisions of the contract which require no special reference. They are not in the nature of conditions precedent on the part of the syndicate, for they depended on the prior performance of certain duties by the defendant, which formed the executory consideration for the acts the syndicate was to perform, and the failure of the defendant to execute such prior duties relieved the syndicate from fulfilling the promises which made it dependent on such performance. The law in this regard is settled.

There are covenants which are conditions and dependent, in which the performance of one depends upon the prior performance of another, and until this prior condition is performed, the other party is not liable to an action on his covenant. The dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and however transposed they may be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance, Addison on Cont., 2d Am. from the 4th Eng. ed. p. 865. “ In all executory contracts,” observes Holt, C. J., “ if the agreement be that one shall do an act, and for the doing thereof the other shall pay, the doing of the act is a condition precedent to the payment, and the party who is to pay shall not be compelled to part with his money till the thing be performed for which he is to pay,” Thorpe v. Thorpe, 1 Salk., 181; and, therefore, if two men should agree, one that the other should have his horse, the other that he will pay him £10 for it, no action lies till the horse be delivered. Ib.; Peters v. Opie, 2 Saund., 350. Tested by these rules, it is evident that the execution of the new mortgage and issuing of the new bonds by the defendant was to precede any duty or liability on the part of the plaintiffs or the syndicate to do any act concerning them, and as neither was made nor issued, the covenant of the syndicate concerning them never became the subject of default on the part of the plaintiffs or any other member of the combination. See Dunham v. Pettee, 8 N. Y., 513.

The plaintiffs were not the disbursing agents of the defendant, but of the syndicate. They were to get in the necessary contributions from members, and pay the moneys over to the defendant, and that they performed this duty is evidenced by the promissory notes, which are the written acknowledgments for the money. The amount paid over by the plaintiffs to the defendant became its property as soon as it entered the treasury of the company, and the duty of disbursing such funds within the restrictions imposed by the agreement devolved upon its officers.

There was no breach of condition or duty by the plaintiffs and no default by them and consequently no reason why they should not he allowed to enforce the obligations owned by them, or why they should be held to have incurred any present liability to the defendant.

No evidence was given in support of the defendant’s counter-claim, and no legal basis for its existence appeared in any form.

The defendant lays great stress upon the clause in the syndicate ” agreement, that “ In the event of the non-purchase of the water works system of the city of Grand Eapids, Mich., and non-payment of the note by the Grand Eapids Hydraulic Company, or its assigns, then the syndicate shall act as a unit for their mutual interests.”

The purchase was not made, and the defendant urges that the loans could be enforced by the syndicate only after all the members thereof had voted to enforce them, and that there was a want of unanimity, because Moses R. Crow, who succeeded to the interest of Duncan F. Cameron, in the syndicate, opposed the enforcement thereof. Crow was the president of the defendant company, and his interests like those of the corporation he represented, were antagonistic to the syndicate. It is but reasonable to hold that the provision requiring the members to act as a unit in certain contingencies does not mean that one member of it may transfer his interest to a hostile party, and thus prevent unanimous action. To decide otherwise would be to permit the president of the defendant company to postpone the payment of the notes in suit until such time as he (Crow) saw fit to permit their enforcement.

The unity of interest for concerted action was destroyed when Cameron, who was disinterested, went out, and Crow, who was interested and hostile, came in. The other members of the syndicate could not be expected to consult him as to their interests, when they knew in advance that his advice and judgment were biased by interests hostile to their own. The compact as to mutual advice and united action, was by the withdrawal of Cameron abrogated or changed to such an extent, at least, that Crow, representing the adverse interest, could neither dictate nor control the action of the other members of the syndicate.

The trial judge properly held that the “ syndicate ” agreement was not a bar to the action, that unanimity of purpose was no longer necessary, and though perhaps in a sense relevant to the issues, the agreement was immaterial as matter of defence, and refusing to admit it in evidence in no manner prejudiced the defendant.

Next, as to the “ bondholders’ ” agreement. This was offered-in evidence by the defendant and excluded. It was not executed by the defendant, was not sufficiently proved to have been executed by all who purported to have subscribed it, and by its terms, it was not to become binding until it was signed by all the bondholders, and until all the bonds and past-due coupons were delivered and deposited as therein provided, and there was no proof or offer to prove that these pre-requisites to a binding contract had been complied with. The evidence (both documentary and oral) excluded by the. trial judge would not have altered the result if it had been admitted. No error was committed in its exclusion. The defendant was technical at the trial, in regard to the plaintiffs’ proofs and their right to maintain the action, and the plaintiffs in turn were equally fastidious about the defendant’s mode of pleading, and insisted upon the rule that a defendant cannot avail himself at the trial of a defence consisting of new matter not pleaded, Code, § 500, subd. 2, and claimed, that the allegations in defendant’s amended answer, that plaintiffs have wrongfully brought this action in violation of their written agreement and in violation of the spirit, terms and conditions of the said other agreement hereinbefore mentioned,” etc., and the further allegation “ that the defendant fully carried out and performed all the portions and parts of the agreement thereto annexed, binding or obligatory upon the defendant, up to the date of the commencement of this action, but that plaintiffs herein failed to perform and carry out the parts and portions of the said agreement, binding and obligatory upon them to the damage of this defendant ” ; all were conclusions of law; no facts having been pleaded tending to show a breach of the agreement by the plaintiffs. Les Suc. D’Arles v. Freedman, 53 N. Y. Super., 518 ; Knapp v. City of Brooklyn, 97 N. Y., 520, 523 ; Van Schaick v. Winne, 16 Barb., 89; Butler v. Viele, 44 Ib., 166, 169; Chauviant v. Maillard, 4 N. Y. Supp., 126 ; Jennings v. Grand Trunk Railway Co., 52 Hun, 227, at pp. 232, 233, Affd 127 N. Y., 438.

The defendant’s amended answer is open to the criticism made, and to the objection sustained by the cases cited. The defendant now insists that the obligations sued upon were not promissory notes, but conditional agreements for the payment of money. The complaint declared upon them as promissory notes, and the amended answer did not dispute the allegations in that regard. The admission concluded the defendant. Code, § 522. The obligations were offered in evidence by the defendant, but no point was made that the securities should have been tendered before suit brought. That objection might have been obviated'then and cannot be urged for the first time upon appeal. Devoe v. Brandt, 58 Barb., 493 ; Newton v. Harris, 6 N. Y., 345 ; Binsse v. Wood, 37 Ib., 526 ; Jencks v. Smith, 1 Ib., 90; Lewis v. Ryder, 13 Abb., 1; Ferguson v. U. S. L. & I. Co., 33 State R., 425. But, aside from this, the defendant on paying the judgment will be entitled as of right to the collaterals given to secure the debt, and in no event would the defendant have been entitled to the securities until it tendered payment of the debt.

The plea of payment and satisfaction set up in the answer was unproved, and apart from the complications and technicalities imported into the case by the defendant, there does not seem to have been a shadow of defence established. The objection that the plaintiffs could not maintain the action is untenable. The obligations sued upon according to the complaint (and not denied by the answer), were absolute promises to pay to Coffin & Stanton, agents, etc.” (the plaintiffs), at times stated, specific sums of money, and according to the instruments themselves, they were promises to pay to them, in manner aforesaid, upon the return of the securities deposited as collateral. See Oatman v. Taylor, 29 N. Y., 649. If the action was not maintainable by the plaintiffs, as the real parties in interest, it was certainly maintainable by them as trustees of an express trust, for the -.contracts were made in their name. Code, § 449; Considerant v. Brisbane, 22 N. Y., 389; Slocum v. Barry, 34 How., 320; Hutchins v. Smith, 46 Barb., 235.

If the defendant intended to raise the objection that the plaintiffs were not the real parties in interest, it should have been pleaded in defence. Savage v. Corn E. F. Ins. Co., 4 Bosw., 15, 16 ; Hammond v. Earle, 58 How., 438; White v. Drake, 3 Abb. N. C., 134. A number of the rulings excluding testimony are sustained by the disposition we have made of the syndicate ” and bondholders’ ” agreements, some because facts were not pleaded, making the proof competent, others because the questions attempted to prove facts which according to the legal rights of the parties under the obligations sued upon and the agreements aforesaid, as we have interpreted them, were immaterial. It is not necessary to review these rulings in detail, as it would lead to useless repetition.

The defendant, appreciating the defective condition of the amended answer for the purpose of raising the questions it undertook to litigate, moved to amend it, but the trial judge in the exercise of judicial discretion refused to allow the amendment proposed. The discretion was not abused, and, therefore, the ruling cannot be assigned as ground of reversible error. We have examined the record with the aid of the elaborate briefs of counsel, and find no error that requires a new trial.

There was no real, substantial or meritorious defence to the action, and the verdict directed merely gives effect to the legal rights and obligations of the parties. It follows that the judgment entered on the verdict and the order denying the motion for a new trial, must be affirmed, with costs.

Sedgwick, Ch. J., concurred.  