117 N.Y. 487, Place v. Hayward
| Citation | 117 N.Y. 487 |
| Date | 10 December 1889 |
| Docket Number | . |
| Parties | BARKER PLACE, as Executor, etc., Appellant, v. J. K. HAYWARD, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Page 487
Argued October 29, 1889.
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COUNSEL
Charles F. Wells for appellant. This action was properly brought by the plaintiff in his representative capacity, and the complaint correctly charged that the moneys were received for the use of the executor. (Fry v. Evans, 8 Wend. 530; Cowell v. Watts, 6 East, 405; Buckland v. Gallup, 105 N.Y. 453; Root v. Taylor, 20 Johns. 137; Bright v. Currie, 5 Sandf. 433; Bogert v. Hertel, 4 Hill, 493; Litchfield v. Flint, 104 N.Y. 543.) If defendant and plaintiff speculated with the assets of the estate, through Fuller as a medium, and divided the profits, Hayward, the attorney, must refund his profits. (Davone v. Fanning, 2 Johns. Ch. 252; In re Friedman, 27 Hun, 301; Goodenough v. Spencer, 15 Abb. [ N. S.] 248; Ford v. Harrington, 16 N.Y. 285.) The referee should have required proof on the part of such attorney of the bona fides of his dealings. (Evans v. Ellis, 5 Denio, 640;
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Mason v. King, 2 Abb. [N. S.] 322; Helm v. Goodwill, 64 N.Y. 642; Whitehead v. Kennedy, 69 id. 466; Haight v. Moore, 5 J. & S. 161; Brock v. Barnes, 40 Barb. 527.) These moneys in the hands of Hayward were impressed with a trust character, as he must have received them with knowledge of the facts. (Lee v. Horton, 104 N.Y. 592; Lawrence v. Townsend, 88 id. 31; Wetmore v. Porter, 92 id. 76; Schofield v. Hernandez, 47 id. 313.)
J. K. Hayward for respondent. Since plaintiff denies a pledge, he cannot recover on the theory of a pledge without amending. (Blanchard v. Strait, 8 How. 83; Phillips v. Melville, 10 Hun, 211; Newman v. Merwin, 12 id. 238; McAdam v. Allen, 12 How. 39.) Plaintiff mistook his remedy. (Booth v. Farmers' Bank, 65 Barb. 457; Thompson v. Whitmarsh, 100 N.Y. 35; Woodworth v. Burnett, 43 id. 276; Calmon v. S. A. R. R. Co., 38 id. 201; Schreppel v. Corning, 6 id. 109.) Pleading an indebtedness in the words merely of 'money had and received' to plaintiff's use is demurrable and warrants a dismissal. (Lienan v. Lincoln, 2 Duer, 670, 672.) Pleading an indebtedness in the words merely 'money had and received' is case instead of assumpsit. (Booth v. Farmers' Bank, 65 Barb. 457.) A representative trial on an individual cause of action warrants dismissal where individual cross-relief is set up. (Patterson v. Patterson, 59 N.Y. 574.) The complaint should have been dismissed when the opening showed plaintiff's transactions only litigable individually with individual counter-claims, and plaintiff refused to amend or try an individual action. (Thompson v. Whitmarsh, 100 N.Y. 35; Patterson v. Patterson, 59 id. 579; Cary v. Bloodgood, 6 J. & S. 137; Austin v. Monroe, 47 N.Y. 360; Ferrin v. Myrick, 41 id. 315.) The complaint should have been dismissed when plaintiff's attorney disclaimed individual trial and insisted on representative, according to the formal words of his pleading. (Bright v. Currie, 5 Sandf. 435; Thompson v. Whitmarsh, 100 N.Y. 35;
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Scranton v. Bank, 33 Barb. 537; Cary v. Bloodgood, 6 J. & S. 137.)Had plaintiff's pleadings set forth the transactions relied on, he would have been estopped denying the mortgage character of the transaction. (McCrea v. Purmot, 16 Wend. 460; Story's Eq. Juris. 371; Shabold v. Bassett, 1 Lans. 124; Calkings v. Lang, 22 Barb. 97; Gilleland v. Failing, 5 Den. 313; Jackson v. Hornsey, 16 Johns. 91; Nellis v. Clark, 20 Wend. 24.) By these over-advances of the executor the assets became the property of the executor himself, in equity as well as in law, which any purchaser could set up for his own protection. (Plowd. 186; Farr v. Newman, 4 T. R. 640; Livingston v. Newkirk, 3 Johns. Ch. 317; Sedgwick v. Place, 5 Otto, 9, 10; 1 Story's Eq. Juris. 423, 581.) A pledgor cannot set up as sham an executed pledge while holding on to the alleged sham consideration. (Davis v. Davis, 6 Jur. [ N. S.] 1320; Martin v. Rigter, 3 Stoct. Ch. 510; Eldred v. Haslitt, 33 Penn. 307; Blackwood v. Jones, 4 Jones Eq. 54; Story's Eq. Jur. [17th ed.] 1542; 1 Fonbl. on Eq. 181, chap. 3; Ryan v. Dox, 34 N.Y. 312.) Setting up as fraud in a later creditor the allegation that he helped the plaintiff cheat a former does not make out a cause of action against the former. (Story's Eq. Jur. [10th ed.] 371; Osborne v. Moss, 7 Johns. 161; McCrea v. Purmot, 16 Wend. 460; Nellis v. Clark, 2 id. 26; Stronach v. Stronach, 20 Wis. 129-133; Hills v. Sherwood, 48 Cal. 386; Haynes v. Harris, 33 Iowa, 516; Broom's Legal Maxims.) One executor cannot traverse another executor's transfers. (1 Story's Eq. Jur. 424, note 581; Parker v. Wilson, 15 Wend. 345.) Payment by means of a trust deed to a third party, as regards usury, is held to be made as of the date of the deed, which here was more than six years before suit begun. (Schreppel v. Corning, 6 N.Y. 107; Smith v. Marvin, 25 How. 326.) Plaintiff's payment to Hayward through this Fuller trust was the same as if made by his own check, and he must base his revocation upon an equitable right to a return of the money. (Livingston v. Newkirk, 3 Johns. Ch. 312; Southerland v. Brush,
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7 id. 21; 1 Story's Eq. Jur. § § 423, 424 n, 581; Broom's Leg. Max. 218-227; Palen v. Johnson, 50 N.Y. 49.)
EARL, J.
This action was brought by the plaintiff, as sole acting executor of Susan A. Place, deceased, against the defendant to recover three sums of money alleged to have been received by him to and for the use of the plaintiff. One item was a sum of $10, 000 and upwards alleged to have been received by him upon a bond and mortgage which came to the plaintiff as executor. The other two items, amounting together to about $12, 000, were alleged to have been received by him upon two endowment policies issued to the testatrix upon the life of her husband, James K. Place, which became due subsequently to her death, in November, 1885. The action was referred to a referee and tried before him, and at the close of the plaintiff's evidence, the defendant, without announcing that he rested his case, moved 'that the complaint be dismissed on the merits, ' and the referee granted the motion and the plaintiff's counsel excepted. Thereafter the referee made his report, containing findings of fact and of law, and concluding that the complaint should be dismissed on the merits and judgment rendered against the plaintiff on the merits of the action, with costs to the defendant. Subsequently, upon the settlement of the case, this took place:
'On settlement of case on appeal the plaintiff's attorney having in his proposed case given the following notice:
'A motion will be made upon the case before the referee to change or modify his findings so that the decision on the final motion will be judgment for the defendant dismissing the complaint, with costs, and not a judgment, or decision or finding, upon the merits.
'And the plaintiff's attorney having made said motion, the same is denied by the referee on the whole case and the plaintiff's attorney excepts.'
Section 1209 of the Code provides as follows: 'A final judgment, dismissing the complaint either before or after a
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trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon the merits.'
The defendant, by procuring a dismissal of the complaint on the merits, probably had this provision of the Code in mind, and intended to procure a judgment that would bar a new action for the same cause. And the plaintiff's counsel by the motion he made on the settlement of the case sought to have the dismissal in such form that the judgment would not bar a new action. The precise scope of that provision of the Code we do not now determine. Nevertheless, what the referee did was to nonsuit the plaintiff. We can give no other significance to the proceeding. Therefore, he should have made no findings of fact except such as would justify a nonsuit upon the trial. Under the Code the referee was required to make findings of fact and of law after granting the nonsuit; but he had no right to make any findings of fact depending upon disputed or inconclusive evidence. Therefore, to maintain this judgment, the defendant is bound to show that there was no disputed question of fact which, upon a jury trial, the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to judgment. (Scofield v. Hernandez, 47 N.Y. 313.)
As these moneys were received by the defendant after the death of the testatrix, and as all the dealings with reference thereto between him and the plaintiff took place after her death, he claimed upon the trial that the plaintiff could not, in his representative capacity, maintain this action, but that the same should have been instituted by him in his individual name. But the referee held before any evidence had been given that the plaintiff could maintain this action in his representative capacity, and that ruling then became the law of the case; and even if erroneous, the...
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