Ga Nun v. Palmer
| Decision Date | 03 October 1911 |
| Citation | 202 N.Y. 483,96 N.E. 99 |
| Parties | GA NUN v. PALMER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by Mary F. Ga Nun, on behalf of herself and all other creditors of Jane M. Sands, deceased, against Mary E. Palmer, individually and as executrix of Jane M. Sands, deceased. From a judgment of the Appellate Division (139 App. Div. 910,123 N. Y. Supp. 1117) affirming a judgment dismissing the complaint on the merits, plaintiff by permission appeals. Reversed, and new trial granted.
See, also, 141 App. Div. 918,125 N. Y. Supp. 1121.Alton B. Parker, for appellant.
George H. Taylor, Jr., for respondent.
This action was brought to recover the sum of $20,000, alleged to be due and owing the plaintiff from the defendant's testatrix, and also to set aside certain transfers of property by the testatrix in her lifetime, alleged to have been made in fraud of the rights of creditors. The answer admits the making of a will by the defendant's testatrix and its admission to probate, and denies the other allegations of the complaint, and then alleges that if any cause of action existed it is barred by the statute of limitations.
The contract upon which the plaintiff seeks to recover is as follows:
The trial court found as facts that, in pursuance of such contract, the plaintiff undertook the care and maintenance of Miss Sands, and continued the same until May, 1900, when Miss Sands left her, and removed from the plaintiff's home in Brooklyn to the defendant's residence in Poughkeepsie, with whom she some time afterwards entered into a similar oral contract with defendant, but for less compensation; that she continued to reside with the defendant until she died on August 17, 1906, leaving a will in which she made the defendant her sole legatee and devisee, and appointed her sole executrix; which will was duly admitted to probate by the surrogate of Westchester county, who issued letters testamentary to the defendant, who thereupon duly qualified, and since has acted as such executrix. The court also found that there was a breach of the contract by decedent in the early part of May, 1900, at which time she left the house of the plaintiff with the intention of never returning to reside with the plaintiff, and with the intention of never permitting the plaintiff to care for her, all of which was well known to the plaintiff at the time decedent left her house and went to live with the defendant at Poughkeepsie; that the plaintiff then employed a lawyer to enforce her claim against the decedent, and he presented bills for the $70 per month up to May 1, 1900, and wrote to the decedent, demanding payment, and threatening action if payment was not made.
This action was brought on the 31st day of May, 1907, after the death of Miss Sands, and the court found as conclusions of law that, more than six years having elapsed after the breach of the contract, the plaintiff's right of action was barred by the statute of limitations.
None of the other issues raised by the pleadings have been tried out or determined, and consequently the only question brought up for review is that upon which the trial court has based its judgment.
[1] The clause of the contract in which Miss Sands agreed to pay the plaintiff $70 a month for the support of the house and her clothes, for which the plaintiff presented a bill up to the 1st of May, 1900, presents no question in dispute. There can be no doubt but that such payments were due and payable monthly, and that the amount thereof, at the time the bill was presented, then being due and payable, the statute commenced to run, and, six years having elapsed before her death, the plaintiff's claim, therefore, became barred by the statute. We do not understand, however, that the plaintiff in this action claims to recover for the monthly allowance specified, but bases her right of action upon the further promise of Miss Sands that at her death the plaintiff is to have the $20,000, which she would find in the safe deposit box.
The trial court, as we have seen, was of the opinion that there was a breach of the contract in its entirety at the time the decedent left the plaintiff's house, and that the statute also ran as to the claim for $20,000. In reaching this result, the learned justice in his opinion refers to the case of Henry v . Rowell, 31 Misc. Rep. 384,64 N. Y. Supp. 488, affirmed on the opinion below, 63 App. Div. 620,71 N. Y. Supp. 1137, as an authority upon this subject, which he was bound to follow. That was an action on quantum meruit to recover for the value of 12 years board and lodging furnished by the plaintiff to the decedent in her lifetime, under an agreementto board and lodge her in his household as long as she should live; she agreeing to leave him by will all of the property she should own at the time of her death. After receiving board and lodging from the plaintiff for 12 years, the decedent left his abode and went elsewhere, and lived for 14 years thereafter, and then died, leaving a will in which she disposed of her property to other persons, Subsequently that action was brought. In that case it was held that there was a breach of the contract at the time that the decedent left the plaintiff's residence, and that the statute of limitations commenced to run at that time; that there was but one cause of action available to the plaintiff, and that was for the value of the board and lodging furnished by him up to that time. In that case there was no agreement to pay a definite sum for board and lodging per month or by the year; the only agreement to pay therefor being the promise of the decedent to make a will giving the plaintiff all of her property. It is therefore apparent that but one cause of action existed in that case. But whether the court correctly held that the action could not be maintained after the testatrix's death by reason of the running of the statute, we now express no opinion.
The case we have now under review differs from the above case, for under the agreement the decedent promised to pay the plaintiff $70 a month for the support of the house, etc., that being a definite, fixed amount, payable monthly, for which an action could have been maintained therefor at the end of each month. With reference to the other provision of the agreement, instead of the decedent promising to make a will giving the plaintiff all of her property, she agreed at her death that the plaintiff is to have the $20,000 in her safe deposit box, and, instead of this action being brought for the value of services rendered on quantum meruit, it is brought upon the contract; the plaintiff claiming the stipulated sum expressed therein. It may be that but one cause of action exists in favor of the plaintiff for the breach of the $20,000 clause of the contract, and that such an action could have been maintained at the time the decedent left the plaintiff's house and went to reside elsewhere . But, in view of the fact that the plaintiff might meet with misfortune, disabling her from carrying out her part of the contract to care for the decedent ‘in sickness and in health as long as she lives,’ thus rendering the determination of the amount of her damages uncertain and difficult to prove, she saw fit to wait until the amount specified in the contract became due by the terms thereof. Did she have the right...
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