Darrow v. Calkins

• Decision Date: 17 December 1897
• Parties: DARROW et al. v. CALKINS et al.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 503

49 N.E. 61

DARROW et al.

v.CALKINS et al.

Court of Appeals of New York.

Dec. 17, 1897.

Appeal from supreme court, appellate division, Second department.

Action by Alfred Lyman Darrow and Fanny Gay Darrow against Lyman Darrow Calkins and others. From an order of the appellate division (39 N. Y. Supp. 527) vacating and setting aside an interlocutory judgment rendered in favor of plaintiffs, and granting a new trial, plaintiffs appeal. Affirmed.

The action was for partition of certain lands in the city of Brooklyn. The plaintiffs, as children and heirs at law of one Edwin J. Darrow, who died interestate November 13, 1864, claimed title to one undivided half of such land, subject to the dower right of two of the defendants, as set forth in the complaint. The defendants Calkins are the widow and three children of one Daniel O. Calkins, who died intestaste July 20, 1887. It is alleged in the complaint that Edwin J. Darrow, at the time of his death, ‘was seised in fee simple’ of the undivided one-half part of the premises sought to be partitioned, and Daniel O. Calkins of the other undivided one-half. It alleges that on the 25th day of September, 1861, the said Edwin J. Darrow, together with his wife, Lucy P. Darrow, made and executed ‘a certain deed in trust’ bearing date on that day, which was recorded in the county of Kings January 19, 1865, whereby the said Edwin J. Darrow and his wife conveyed all their estate in the aforesaid real property to the said Daniel O. Calkins, ‘to have and to hold, to control and manage, sell and convey, the whole or any aprt of said premises as part of the partnership property of the aforesaid Calkins and Darrow, and to pay over to the said Darrow, his heirs and assigns, or other legal representatives, such portion thereof as shall, at the closing of the partnership business of said Calkins and Darrow, belong to or be due or coming to the said Darrow, his heirs, executors, assigns, or other legal representatives.’ It alleges, in substance, that a copartnership had existed up to the death of Darrow, in 1864, between him and Calkins, under the firm name of Calkins & Darrow; that the trust upon which the deed of September 25, 1861, was made had not been performed; that no accounting had been had to ‘these plaintiffs, or to any court having jurisdiction in the matter;’ that the co-partnership had long since ceased and terminated; that there were no outstanding debts of the firm; and that the purpose of the said trust had ceased to exist, and the trust, if ever operative, had terminated. The interests of the respective parties, as claimed by the plaintiffs, are set forth, in substance, that the plaintiffs are each entitled to an undivided fourth part of the premises, and the children of Calkins to the other one-half part, subject to dower interests as stated. The complaint further states that a ‘certain pretended’ judgment was entered on the 31st day of October, 1867, in the supreme court of the state of New York, in an action brought by Lucy P. Darrow (the widow of Edwin J. Darrow), as administratrix of his estate, against Daniel O. Calkins and others, for the purpose of ascertaining ‘what interest such administratrix had, if any, in the co-partnership effects of the firm of Calkins & Darrow,’ by which judgment it was decreed that the plaintiffs (in this action) had no title or interest in the lands of real estate described in the complaint in that action, which included the premises sought to be partitioned in this action; that the present plaintiffs were infants, and noresidents of the state, when the former action was brought; and that they were not legally brought in as parties to that action, and were not bound by the appearance of the guardian ad litem for them therein; and that the judgment as to them was without jurisdiction, and void. The complaint prayed judgment for partition according to the interests as set forth in the complaint.

The defendants Calkins answered the complaint, and, among other things, alleged that Daniel O. Calkins, at the time of his death, was the sole owner of the lands described in the complaint, and that prior to his death he had fully performed all the terms and conditions contained in the deed of September 25, 1861, and that upon his death the lands descended to his children and heirs at law, subject to the dower right of his widow. The defendants Calkins further set up the judgment rendered in the action brought by the administratrix of Edwin J. Darrow against Daniel O. Calkins in bar of the present action, and also the statute of limitations.

On the trial the plaintiffs put in evidence deeds of four parcels of land, comprising 48 city lots in the city of Brooklyn, including the premises sought to be partitioned in this action, executed to Daniel O. Calkins and Edwin J. Darrow in the years 1850, 1852, 1853, and 1854. Also the deed of September 25, 1861, from Darrow and his wife to Calkins, hereinbefore referred to. This deed purported to convey to Calkins, for the consideration expressed of one dollar, all the right, title, and interest of Daniel and his wife in and to the real estate described therein in full and ample terms, as in a deed of bargain and sale, followed by the habendum in the words hereinbefore stated. The plaintiffs further read from the answer of Daniel O. Calkins in the suit brought against him by the administratrix of Darrow (as admissions binding upon the defendants in this action) certain paragraphs, for the purpose, among other things, of showing that at the time of the commencement of that action there were assets of the firm in the hands of Calkins (other than the real property of the partnership) sufficient to pay all the debts of the firm, and to adjust the accounts as between the partners. The plaintiffs then rested. The defendants thereupon offered in evidence the judgment roll in the former action brought by the administratrix of Darrow. Its admission was objected to by the plaintiffs on the ground that the judgment in that action was not binding upon them, for the reason that it was rendered before the court had acquired any jurisdiction over their persons. The court sustained the objection, and excluded the judgment, except that it was admitted for the single purpose of laying the foundation of a title by adverse possession under the statute of limitations. The defendants then gave evidence tending to establish that from the time of the rendition of the judgment of October 31, 1867, Daniel O. Calkins and his children had been in adverse possession of the lands in question, claiming title under the judgment.

The following facts are disclosed by the record in the former action: In general, the action was brought by the administratrix of the deceased partner in the firm of Calkins & Darrow against Calkins, the surviving partner, and certain persons to whom he had contracted to sell certain of the lands conveyed to him by the deed of September 25, 1861, for an accounting of the affairs of the partnership, and to have the rights of the respective partners in the partnership property adjudged and determined. The complaint set out the deed of September 25, 1861; averred that the lands embraced therein were held by Calkins as co-partnership property, to be by him disposed of as ‘assets of the firm’; that he had made certain pretended and collusive sales; that no settlement of the partnership accounts had ever been had; that Calkins had neglected and refused to account to the plaintiff, as administratrix of Darrow, and, in fraud of the partnership, was applying the partnership property to his own use, etc. Calkins, the surviving partner, in his answer, denied all allegations of fraud; admitted, in substance, that the lands held by him under the deed of September 25, 1861, were co-partnership property; that upon a settlement of the co-partnership business and the sale of the lands and real estate held under that deed a considerable sum of money would be found to be due to the estate of Darrow; that he was anxious to have a settlement of the partnership business; and near the close of his answer he alleged that he was advised that the interest of Darrow ‘in the proceeds' of the lands was an interest in lands which, on his death, descended to his two infrant children (the present plaintiffs); and (the answer proceeds) ‘he submits to the court that the children and heirs of said Edwin J. Darrow should have been made parties to this action.’ After the service of the answer, the court, on the application of the attorneys for the plaintiff, and on the 15th of October, 1867, made an order amending the summons and complaint by adding the names of the present plaintiffs and defendants, and on the 18th day of October, 1867, made an order for the service of the amended summons upon them by publication, it appearing that they were infants, and nonresidents of this state, and resided at Hartford, Conn. On the 22d day of October, 1867, the summons was personally served upon them at Hartford. On the 24th day of October, on the petition of their mother, an attorney of the court was appointed their guardian ad litem in this action, who put in an answer submitting their rights and interests to the protection of the court. Thereafter, on the 31st of October, the final decree was entered. By this decree it was, among other things, adjudged that the interest of Edwin J. Darrow in the lands and real estate and the proceeds thereof was personal estate, and belonged to the plaintiff, as administratrix; that the infant defendants (the present plaintiffs) had no title or interest therein as heirs of Edwin J. Darrow; that the assets of the co-partnership of Calkins & Darrow, including contracts for the sale of real estate, were worth about $28,000; and that, the ‘plaintiff and defendant Daniel O. Calkins, on a full accounting between them as to said estate, having agreed upon the sum of $14,000 as the present actual...