The Manufacturers' and Builders' Bank v. Kiersted. ROBINSON, J.-The return of the Marine Court shows that on an appeal by plaintiff to the general term thereof, from an order entered on their motion to strike out a demurrer to the complaint as frivolous, and denying the same, such general term, on the 28th day of April, 1874, ordered "that said order appealed from be reversed with $10 costs, and that plaintiff have judgment on account of the frivolousness of the demurrer, with leave to defendants to serve answer within ten days from service of this order, on payment of ten dollars costs of this appeal, and ten dollars costs of the motion in the court below, no judgment to be entered except after twenty-four hours' notice of taxation of costs." On an affidavit subsequently made by the plaintiff's attorney, on May 12, 1874, "that no answer had been received or served in said action," filed with the clerk, and due notice of taxation of costs, a judgment was thereupon entered against the defendants, without further application to the court. The judgment recites as follows: "Judgment, May 12, 1874. The summons and complaint having been personally served on the defendants, and no answer to the complaint having been received by plaintiff's attorney, as provided in the order for judgment on defendants' demurrer, which was entered on the 28th day of April last, and plaintiff's costs having been taxed on appearance, now on motion of Frederick Swartz, plaintiff's attorney, it is adjudged (as the judgment proceeded to direct), that the plaintiff recover the amount of the claim in suit (a promissory note), and costs." It seems to be clear that this judgment was entered solely under and by force of the direction and judgment of the general term, and that, under the facts stated and appearing by the record, the judgment so rendered was final upon the rights of the defendants as presented by their demurrer, and the present appeal does not seem premature for any want of a final determination by the general term upon the issue of law presented by the pleading. The favor of putting in an answer upon the prescribed terms accorded by the general term not having been availed of, does not render the decision any the less absolute and final, nor alter the consideration of the questions arising out of that order of judgment by the general term. In this respect the case differs from that of Hollister VOL. VI.-11 The Manufacturers' and Builders' Bank v. Kiersted. Bank v. Vail (15 N. Y. 593), in which the general term had merely affirmed an order for judgment on account of the frivolousness of the demurrer to the complaint, but had not made any determination that was in itself a judgment entered by its sole dictation and authority. The power given to the general term was to affirm, reverse or modify the judgment or order appealed from (Code, § 330; act of 1872, ch. 629, §§ 9, 11), but not to direct a new and absolute judgment (even if terms were tendered upon which it may be avoided), in direct opposition to the provisions of such original judgment or order. It is manifest any such new appeal from the judgment so ordered, would be but a representation of the same precise matters, without any intermediate judicial action of, or reconsidering of, any new case by any judge at special term. For these reasons I am of the opinion the judgment appealed from was a final determination of the action in the Marine Court, and absolute judgment by the general term. The before mentioned act of 1872, ch. 629, then controlled the proceedings of that court. Section 2 of that act adopted the provisions of the Code relating to proceedings and remedies in courts of record, as those to govern in the Marine Court, except as otherwise directed by the act. Section 5 prescribed various periods of time. to be allowed an adverse party, and contained, among others, this provision: "A motion for judgment on the answer, and for like causes, as allowed by said Code of Procedure, may be made on a notice of not less than two days." By § 14 all other notices of motions were to be four days, unless the court, or a justice thereof, should, by order to show cause, prescribe a shorter time. Such authority to prescribe a shorter time than two days' notice of a motion for judgment, on account of the frivolousness of a demurrer, was expressly excluded from any power on the part of the court, or any justice, by any order to show cause to prescribe a shorter time (Leland v. Smith, 3 Daly, 309). The original motion for judgment made by plaintiff on aecount of the frivolousness of the demurrer, was on return of an order of a justice granted on the 18th, and returnable on the 19th, and not upon any notice of not less than two days. The demurrer is liable to the imputation of frivolousness, but, on The Manufacturers' and Builders' Bank v. Kiersted. the hearing, the defendant's attorney presented an affidavit palliating or extenuating its interposition. The judge, under these circumstances, denied the motion, and deferred the plaintiff to the trial at law on the demurrer. Some suggestions may possibly have been presented to him besides the apparent want of due notice of motion, of imperfect allegation in the complaint, that he may have deemed worthy of more deliberate consideration or formal argument. The order of the justice denying the motion (in addition to the efficacy of the previously stated objections), was also mere matter of discretion, and not the subject of review. By the act of 1872, ch. 629, § 10, appeals in the Marine Court to the general term were only allowed in the same cases as provided by the Code of Procedure in the Supreme Court. That § 349 only allowed any such appeal from decisions as to a demurrer that sustained or overruled them (sub. 2), or where the matter decided affected a substantial right (sub. 3). The denial by the judge of the motion for judgment for frivolousness of the demurrer affected no substantial right, but merely deferred the plaintiff on the argument or trial of the question of the substantiality of the questions raised by the demurrer, to a more appropriate and deliberate tribunal, to wit, the trial term for issues of law. The decision, even if justified by the short notice. of motion, did not "involve the merits of the action, or some part thereof, or affect a substantial right.” While the demurrer may have been clearly frivolous, and the objections to the judgment technical and factious, they yet grew out of provisions of law intended to guard the rights of suitors, which, in the course of plaintiff's (respondent's), proceedings, have been violated. The order of the judge denying the motion for judgment was justifiable on the technical grounds of want of sufficient notice, and also in the right, in his discretion, to require a formal trial at law of the merits of the demurrer. That order ought not to have been reversed, but far less was it within the province of the general term to not alone so reverse it, but, in addition, to order judgment absolute against the defendants, unless they availed themselves of terms and conditions which they did not choose to accept, and which it had no right to impose. Foster v. Persch. For these reasons I am of the opinion the judgment is one appealable to this court, and should be reversed, and a new trial of law on the demurrer ordered with costs to abide the event. LARREMORE, J., concurred in this opinion. CHARLES P. DALY, Ch. J., concurred in holding that the judgment was appealable to this court, but was of opinion that the decision of the general term of the Marine Court was right. Judgment reversed and new trial ordered. WILLIAM R. FOSTER AND OTHERS against AMELIA M. C. PERSCH. (Decided November 1st, 1875.) Defendant's husband, with her concurrence, and in order to conceal his property from his creditors, carried on business in her name, but in reality for his own benefit. The plaintiffs, knowing these facts, sold goods on credit to be used in the business, and the defendant's husband, who acted as her agent in buying the goods, told the plaintiffs to charge the goods to him or to the defendant, as they choose, and the plaintiffs, after consultation, charged the goods to the defendant's husband. Held, that this was an election by the plaintiffs to accept the defendant's husband and agent as principal in the transaction, which they could not revoke, and that a finding by a referee in an action against the defendant for the price of the goods, that the plaintiffs, by so doing, “did not intend to exonerate the defendant from liability therefor," was erroneous. APPEAL by defendant from a judgment of this court for $1,101 99, entered on the report of George M. Van Hoesen, Esq., appointed referee to hear and determine the issue. The action was brought to recover from the defendant, for goods sold and delivered to her, of the value of $618 52. The answer was a general denial, and the proofs offered by the defendant on the trial went to show that the goods had been sold and delivered to the defendant's husband, and not to her, and that the credit had been given to him. The findings of the Foster v. Persch. referee on this point, and the evidence on which they were based, are stated in the opinion. August Reymert, for appellant. William R. Foster, Jr., for respondent. ROBINSON, J.-Upon the conflicting proofs, the referee was warranted in finding, as a matter of fact, that the baking business carried on by defendant's husband was conducted in her name as owner, with her concurrence. The use of her name was, however, manifestly but a cover to allow him to transact business for his own benefit, under the protection of her name, so as to avoid the claims of his creditors. The only question the case presents for serious consideration is whether the plaintiffs having, under the circumstances disclosed by the testimony, and with full knowledge of the assumed position of Frederick W. Persch as agent of the defendant, his wife, in making the purchase, elected to charge the goods sold and give the credit exclusively to the husband, can avoid the legal force and effect of that act, and enforce their rights as creditors for the goods sold against the separate estate of the wife? The referee finds, as matter of fact, that in so charging the goods to him they "did not intend to exonerate the defendant. from liability therefor," and in this he erred. The law regards them as having intended the legal consequences of their act, and while ordinarily in a sale made through an agent of a purchaser, the legal presumption is that credit is given to the principal, though charges in the books of the vendor made against the agent, his relation being known, are strong evidence that the credit was given to him, they are yet but private memoranda of the vendor, and are not conclusive evidence that it was given exclusively to him (Meeker v. Claghorn, 44 N. Y. 352). In the present case the testimony makes it appear clearly that the credit was exclusively given to the assumed agent. He had previously carried on the business and bought goods from the plaintiffs for that purpose. On commencing to make purchases under this new assumed relation of his wife, he informed Mr. Dewey, one of the plaintiffs, to whom he applied |