Blinn v. Schwarz

• Decision Date: 26 January 1904
• Citation: 69 N.E. 542,177 N.Y. 252
• Parties: BLINN v. SCHWARZ et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 252

69 N.E. 542

BLINN

v.SCHWARZ et al.

Court of Appeals of New York.

Jan. 26, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Christian Blinn against Julia Schwarz and others. From a judgment of the Appellate Division (71 N. Y. Supp. 343) overruling plaintiff's exceptions, denying motion for a new trial, and directing judgment for defendants, plaintiff appeals. Affirmed.

By her answer to a complaint in ejectment, the defendant Julia Schwarz denied that she wrongfully withheld the land in question from the plaintiff, and alleged that she was in possession thereof by virtue of a deed executed to her by him on the 31st of March, 1890, in consideration of $78,000 paid by her, and to the extent of $54,000 applied to discharge mortgages that were liens on the property. The plaintiff, by his reply, alleged that he had no knowledge or recollection of having signed or acknowledged the deed purporting to convey said property; denied that he ever, in person or otherwise, delivered the deed or received the consideration; averred that he was insane at the date of the alleged conveyance, and that the said Julia Schwarz took advantage of his condition by procuring his signature ‘to a certain paper purporting to be a deed of the premises' described in the complaint.

On the 26th of September, 1887, the premises in question were conveyed to the plaintiff, who entered into possession thereof, and so remained until March 31, 1890. On the same day he made and delivered to his grantor six purchase-money mortgages upon the property to secure the sum of $65,000 in all. On the 31st of March, 1890, a deed, dated and acknowledged that day, made by the plaintiff and his wife to the defendant Julia Schwarz, purporting to convey the premises described in the complaint, was recorded in the office of the register of the county of New York. Since that date Julia Schwarz has been in possession of said premises, ‘claiming to be the owner thereof under and pursuant to the tenor of said deed.’

Evidence was given tending to show that ‘from about the 1st of January, 1890, until within a few months from the time he was discharged from a sanitarium in 1895,’ the plaintiff was insane, his mind a blank, ‘and he knew nothing whatever of signing any papers or of anything else which occurred during that time.’ It does not appear that an inquisition was made, or that the plaintiff was ever adjudged insane. The plaintiff was sane when he brought this action on the 25th of October, 1897, and also when, prior thereto, he brought an action, which is still pending and undetermined, against one Henry Ungrich, alleging in his complaint therein, verified July 2, 1897, that on or about the 17th of February, 1890, he was engaged in the business of buying and selling real estate, and owned 35 parcels of real property in the city of New York, including those in question; that at the date last named, being obliged by ill health to withdraw from business, he appointed said Ungrich ‘his agent and trustee,’ through a written power of attorney, ‘the exact manner and form’ of which he was unable to state; that on the 16th of April, 1890, he executed a second power of attorney, a copy of which was annexed to said complaint, and reappointed said Ungrich his ‘agent and trustee,’ with further and enlarged powers to act for him in the management of his business; that said Ungrich accepted the agency and trust, entered into the possession, control, and management of the property, including that now in question, and from time to time sold and disposed of ‘certain of the said property, if not all,’ and received the consideration therefor; that said Ungrich abused the trust and confidence reposed in him by the plaintiff, and confided to him by said powers of attorney, by selling some of the property to his relatives at less than it was worth, and other parcels at prices below what at or about the time he was actually offered for the same; that he failed to use due diligence and discretion, and acted in a manner injurious to the plaintiff's interests and rights; that he retained and used the moneys received by him for his own use and benefit, and made large and secret profits in the management of the plaintiff's property, to his great damage; that said powers of attorney had never been revoked, and said Ungrich was still in full charge of the affairs of the plaintiff that were intrusted to him at the time of the execution of the first power of attorney; that he had never paid to the plaintiff any of the moneys received by him for the property sold, and had never accounted therefor, or for any of his acts or dealings in connection therewith; that the plaintiff was not able to resume active participation in business affairs until on or about October, 1895, since which time he had frequently demanded of said Ungrich an accounting for the moneys received by him, and for his acts and dealings in the execution of the agency and trust conferred upon him; that an accounting was necessary, upon which ‘there will be found to be equitably due and owing from [said Ungrich] to this plaintiff a large amount of money, which should be decreed to be paid by [him] to plaintiff.’ The prayer for judgment was ‘that the defendant be directed to make discovery of, and to account to plaintiff for, the moneys and other valuable considerations received by [him] in trust for the plaintiff while acting as agent and trustee of plaintiff, and had and retained by him for his own use and benefit, and for [his] profits made in the course of his management of plaintiff's property and business, and for all of his transactions as agent and trustee of plaintiff, and for such other and further relief,’ etc.

The defendant Schwarz paid to said Ungrich $77,750 as consideration for the deed to her of the property in question, and there was no evidence of a return or offer to return the same to her, or that she had notice of the plaintiff's condition when she made the payment. By a power of attorney dated, executed, and acknowledged April 16, 1890, the plaintiff appointed Henry Ungrich his true and lawful attorney ‘to grant, bargain and sell all and every, the real estate and property which I own, have owned and possessed, wheresoever situate or any part thereof, for such price and upon such terms as to him shall seem meet, and for me and in my name to make, execute, acknowledge and deliver good and sufficient deeds and conveyances for the same’; to borrow such sum or sums of money ‘upon the security of my said estate and property’ as he shall from time to time deem proper and to execute bonds and mortgages to secure the same; to lease the property, and exercise general control and supervision of the same; to prevent trespass, waste or other injury thereto; to purchase and sell for cash or on credit all such articles and property as he may deem useful and proper as connected with my estate, business and property, both real and personal; to sign and endorse notes and drafts, state and adjust accounts, sue and compromise claims and ‘take the general management of my affairs, property and business.’ The power of attorney dated February 14, 1890, was substantially to the same effect, as to the right to sell, convey, borrow, mortgage, sue, compound, and lease; ‘to exercise the general control and supervision of all my lands and tenements * * * and to do all and every act and thing in and about my said property for the keeping, conveyancing, mortgaging and leasing of the same as I might or could do.’

At the close of the evidence the court directed a verdict in favor of the defendants and against the plaintiff. To this direction the plaintiff excepted, and asked to have the question of the plaintiff's insanity at the time of the making of the deed to the defendant Schwarz submitted to the jury; but the court declined, and an exception was taken. No other request or motion was made by or in behalf of either party. The court ordered the exceptions to be heard in the first instance by the Appellate Division, which overruled the same, and ordered judgment to be entered upon the verdict in favor of the defendants.George Newell Hamlin, George B. Lester, and Harmon S. Graves, for appellant.

Edward W. S. Johnston and Edward P. Orrell, for respondents.

VANN, J. (after stating the facts).

The deed in question and both powers of attorney were executed by the plaintiff when he was of unsound mind and incapable of attending to his affairs, as the jury might have found. About two years and a half after he recovered his mind he sued his agent and trustee for a general accounting, and the allegations of his complaint would have permitted the recovery, among other moneys, of the sum of $77,750 paid by the defendant Julia Schwarz upon the purchase of the property in question. The plaintiff did not allege in his complaint in that action that his agent had received that sum, or any specific money; and it does not expressly appear that he knew when he brought the action what sums had been paid, or under what circumstances, or for what property. After that complaint had been put in evidence by the defendants, however, the burden was upon the plaintiff of explaining the same, or of showing what he could in answer thereto, but the record contains nothing upon the subject. As he had never been adjudged a lunatic, he could not proceed on the assumption that he was insane, as he alleged, for that was a question for the jury. The lapse of time between his recovery and his act has an important bearing upon what he is presumed to have known. While neither power of attorney specifically covered the receipt of money paid in consideration of property conveyed by the plaintiff in person, still the general powers were broad enough to authorize the agent and trustee to collect the same.

Although the plaintiff in the action now before us excepted to the direction of a verdict in favor of the defendants,...