Lannon v. Lynch

Decision Date27 October 1899
PartiesLANNON v. LYNCH et al.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, First department.

Action by Bridget Lannon against Franklin Lynch and others, as executors, etc. From an order of the appellate division (50 N. Y. Supp. 156) reversing a judgment in favor of plaintiff, she appeals. Reversed.

Gray and Vann, JJ., dissenting.

Robert P. Harlow and M. P. O'Connor, for appellant.

Francis B. Chedsey, for respondents.

O'BRIEN, J.

The plaintiff presented a claim against the estate of one David Hall, who died on the 29th of May, 1895, leaving a will, in which the defendants were named as executors. The claim was disputed, and subsequently referred, by agreement of the parties, to a referee to hear and determine. The plaintiff stated in her claim, which was verified, that on July 1, 1873, she placed with the deceased the sum of $300, to be kept for her by the deceased, and returned or paid back by him to her when she became advanced in years; that subsequently she placed with him the further sum of $100, for the same purpose, and to be repaid in like manner; that no part of the sum so deposited had been repaid, and that the whole amount, with interest, is due from the estate of the deceased. The case having been brought to trial before the referee, the plaintiff's counsel produced and put in evidence two instruments in the form of promissory notes, signed by the deceased,-one dated July 1, 1873, for $300, due in six months thereafter, with interest; and the other dated October 4, 1873, for $100, due in twelve months thereafter, with interest. The deceased, in both instruments, promised to pay the sum therein mentioned to the plaintiff at the times therein specified. The plaintiff's counsel then called the plaintiff's daughter as a witness, who testified to a conversation between the deceased and the plaintiffabout a month before his death, and at which the witness says she was present. As this testimony evidently had an important bearing on the case in the mind of the referee, it is, perhaps, important to give it in full as it appears in the record. The material part of it is in these words: ‘The conversation was that Mr. Hall began to speak about being sick, in the first place. He passed a remark that he was about to die, and my mother asked him why he thought that. He says, ‘I know I am going to die, and I will go just like George.’ Q. Who was George? A. My father. So, after a short time, my mother says to him, ‘Dave, now about that $400 I gave you to keep for me till I would be old?’ He says, ‘What $400?’ She said, ‘Is it possible that you forget about my $400 that I worked so hard for, and gave to you to keep for me?’ He said, ‘I remember no $400.’ And then I said to my mother: ‘Why do you stand there arguing with him? Why don't you go upstairs, and get the papers, and show him his signature when you gave him that money?’ Then I said to my mother, ‘I will go and get them for you.’ And she says, ‘No, I will get them myself,’ So she went upstairs, and brought down the notes, and she says to him, ‘Now, Dave, surely you remember your own signature,’ and she says, ‘Don't you remember,’ she says, ‘about being so mad about my not giving you all the money when I gave your brother Jimmie $200, and how angry you were because I didn't give it all to you?’ He looked at her for a few minutes. ‘Oh, crackie, yes,’ he says. That is just what he said, ‘Oh, crackie, yes.’ He took the notes, and, after he got through, he handed them back to my mother, and she says, ‘Now, Dave, I am glad you remember that, because I knew that money would come in useful when I was old,’ and I passed a remark, ‘You were better than a bank.’ It came right to his memory as soon as she mentioned about his being angry about giving the other money to his brother. Q. Mrs. Murphy, speaking about the papers or the notes that you went upstairs to get, and which were subsequently shown to Mr. Hall, are these papers which I now show you the papers that were brought from upstairs, and shown Mr. Hall? A. They certainly are the very same papers. I know them a long while. Q. And were these the papers after which he had looked at and seen that he made the expression, ‘Oh, crackie, yes?’ A. Those are the papers.' This was substantially all the testimony given, and it was not changed in any material respect by the cross-examination. The defendants' counsel moved to dismiss the claim on the ground, among others, that it was barred by ...

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5 cases
  • Nat'l Harrow Co. v. E. Bement & Sons
    • United States
    • New York Court of Appeals Court of Appeals
    • June 19, 1900
    ...Y. 458, 53 N. E. 216;People v. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 689;Gannon v. McGuire, 160 N. Y. 476, 55 N. E. 7;Lannon v. Lynch, 160 N. Y. 483, 55 N. E. 5;Spellman v. Looschen, 162 N. Y. 268, 56 N. E. 741;Shotwell v. Dixon, 163 N. Y. 43, 57 N. E. 178. Every one of the cases cite......
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