Gallagher v. Brewster

• Decision Date: 22 June 1897
• Citation: 153 N.Y. 364,47 N.E. 450
• Parties: GALLAGHER v. BREWSTER.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 364

47 N.E. 450

GALLAGHER

v.BREWSTER.

Court of Appeals of New York.

June 22, 1897.

Appeal from supreme court, appellate division, First department.

In the matter of the estate of Nathan Brewster, Philip E. Gallagher presented a claim which was disallowed. From a judgment for appellate division (36 N. Y. Supp. 1081) affirming such judgment, claimant appeals. Reversed.

Nathan Brewster died in 1893. Philip E. Gallagher presented to his executor a claim against his estate for the sum of $500 for ‘services rendered the late Nathan Brewster since June, 1888, under his written acknowledgment of the said debt.’ The executor, after the death of the decedent, found in his private box in the office of a safe-deposit company the decedent's will and other papers, among which was a memorandum, written and signed by him, as follows: ‘N. Y., June 15, 1891. To my executor and executrix, Wm. B. Ogden and Lizzie Walton. I have made a will, and you are mentioned as above. You will pay Philip E. Gallagher five hundred ($500.00) dollars. I owe him that. He is my old friend, and may be too modest to put in a claim.’ This was the acknowledgment referred to in the claim presented. The executors disputed the claim, and in February, 1894, it was referred to a referee. On the trial the memorandum was offered and received in evidence. The claimant was sworn, and testified that he had known the decedent for 15 years prior to his death, and for the last 10 years they resided at the same hotel, and were very intimate friends; that in the last 5 years the decedent had a number of spells of illness, and that he (the witness) was with him on most of these occasions, and during his last illness was with him day and night until he died. The claimant did not testify to any personal transactions with the decedent. He was incompetent to testify upon that subject. He called as a witness an intimate friend of both the claimant and the decedent, and he testified that Mr. Gallagher and Mr. Brewster were business men, and in their business and other relations were as intimate ‘as two men could possibly be’; that during the last five years of his life Mr. Brewster was ill on several occasions; that he always called for Mr. Gallagher when he was ill, and that the latter showed him a great deal of attention. He further testified: ‘They always had business together. Of course, they had a good deal of private business which I never knew anything about, and sometimes I never heard. I know of Mr. Gallagher attending to business matters for Mr. Brewster during these times that he was ill.’ On his cross-examination he testified that Mr. Gallagher's attentions to Mr. Brewster extended over five or six years; that he was not ill prior to that time; that he quite often had vertigo, and would drop down in the street; that Mr. Gallagher took Mr. Brewster to Lakewood one, two, or three times, when convalescent, four, five, or six years before he died; that Mr. Gallagher was a business man, possessing means, and was entirely independent in his manner of living. The foregoing is the substance of the testimony given on the trial. No evidence was offered in behalf of the executors. The referee made his report against the claimant, and the judgment thereon was affirmed by the appellate division.

F. H. Kellogg, for appellant.

William H. Sage, for respondent.

ANDREWS, C. J. (after stating the facts).

The referee refused to give any force to the memorandum, either as an obligation or as constituting an admission by the decedent of any liability to the claimant. He held that it did not create an obligation, because it was never delivered, and that it could not be regarded as an admission, because the decedent retained it in his possession. He was clearly right upon the first question, but erred in respect to the second. It was an admission of a legal enforceable liability to the...