Canda v. Totten

• Citation: 157 N.Y. 281,51 N.E. 989
• Parties: CANDA v. TOTTEN.
• Decision Date: 22 November 1898
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 281

51 N.E. 989

CANDA

v.TOTTEN.

Court of Appeals of New York.

Nov. 22, 1898.

Appeal from supreme court, general term, Second department.

Bill by Lizzie J. Canda against John Totten. From a decree of the general term (33 N. Y. Supp. 962) reversing a judgment for plaintiff, she appeals. Reversed.

George V. Brower, for appellant.

Julius H. Seymour, for respondent.

PARKER, C. J.

As the reversal of the special term was upon the law, and not upon the facts, we are to inquire whether, under the most favorable view of the evidence upon which the special term based its judgment, it can be supported. Our conclusion is that the reversal was error, evidently due to the fact that the appellate tribunal did not so thoroughly appreciate as did the special term some portions of the evidence. The former court treated the case as if the plaintiff, having no interest in certain real estate about to be sold at public auction, made an arrangement with the defendant by which he agreed to purchase the property, pay for it, and subsequently convey it to plaintiff upon the receipt of the amount paid by him, which agreement the defendant refused to carry out after his purchase of the property. If that were a correct statement of the facts of this case, then the assertion that Ryan v. Dox, 37 N. Y. 307, ‘is so unlike the present one as to be incapable of application here,’ would have some support; for in that case the plaintiff did own the fee of the property which was sold under a judgment of foreclosure, while this plaintiff's interest consisted of an inchoate right of dower. But we proceed to an examination of the pregnant facts which this record contains; for, when that is done, the law of the case will not be found to be difficult.

The plaintiff's husband, John M. Canda, made a general assignment for the benefit of creditors, by which instrument there passed to the assignee the title to certain pieces of real estate, each of which was incumbered by mortgage, and subject to the inchoate right of dower of this plaintiff. This real estate was in due course advertised for sale by the assignee at a public auction to be held on the 15th day of February, 1894; and the plaintiff, after consultation with her husband, concluded that, if some of the property thus to be sold should go at a low price, then it would be advisable for her to purchase it. They concluded that some third person had better do the bidding, and the defendant came promptly to the mind of Mr. Canda as the best person to intrust with the matter, because of their intimate personal relations, to which was added the fact that the defendant had been under business obligations to Mr. Canda, which were of exceedingly great value to him. And so it happened naturally that shortly afterwards Mr. Canda, at the request of the plaintiff, called upon his old friend, this defendant, and (quoting his own language) ‘told him the assignee was going to sell some property in Brooklyn. I didn't think it would fetch very much, it was embarrassed,-my wife's right of dower, mortgages, etc.; and she, if it didn't bring too much, had concluded to buy it. We had been cogitating, thinking how it had better be done, and concluded that we would ask him to buy it for her.’ In reply, defendant ‘said he would do anything of the kind he could for me; that he considered that I had benefited him a great deal; that, when he was not worth a cent in the world, I befriended him, trusted him. * * *’ Five days before the sale, Mr. Canda again called on the defendant to talk the matter over, and, upon being asked if he would buy the property for Mrs. Canda, said ‘he would do so; and he says, ‘I have got the money to put in it,’' to which Mr. Canda replied, ‘You won't have to put any money into it for a day or two, and Mrs. Canda will manage to raise the money. You won't be out any money.’ One other meeting was had between the parties, on the day of the sale, at which time the defendant was furnished with estimates of the prices which Mrs. Canda was willing to pay for the property; and with the promise to buy the property for the plaintiff, if it could be bought at the prices fixed by her, or less, he started for the place of sale, accompanied by the plaintiff's son. He had never seen the property, but promptly made bids upon the pieces selected by the plaintiff for purchase, with the result that the full price of the properties over and above the incumbrances was only $620. He paid down the percentage required, and signed the terms of sale, which provided that the balance of the purchase price should be paid and the deeds delivered at the assignee's office on the 27th day of February. On that day the plaintiff's son, in her behalf, went to the assignee's office, with $620 in his possession, which he intended to be used in paying the balance of the purchase price, and reimbursing the defendant for the percentage he had advanced on the day of the sale; but the defendant had been there shortly before him, had taken the deeds in his own name, and gone away. The day following, the plaintiff's husband went to the defendant's office, and handed him an envelope containing $620; and he testified that ‘Mr. Totten opened the envelope and counted the money.’ ‘He says: ‘There is not enough here, Mr. Canda.’ I says, ‘Why not? It is the amount of the bid.’ ‘Well,’ he says, ‘I have paid for the record,-for recording the deed,-and I have been to some expense for car fare, lunches, going to Brooklyn, and so forth, $7 for recording the deeds, and some other little expenses.’ And I took $10 then out of my pocket, * * * and I handed it to him. I says, ‘Will that cover all expenses?’ He says, ‘Yes,’ and he took it.' The Court: ‘Q. He kept the money? A. Yes, sir; he kept the money.’ The defendant admits that he took the money and deposited it with other moneys in his regular bank account on that day. It is true that the defendant, while testifying, attempted to make it appear that, while he took the money and deposited it in...