In re Pirie

• Decision Date: 05 April 1910
• Parties: In re PIRIE.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 209

91 N.E. 587

In re PIRIE.

Court of Appeals of New York.

April 5, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the estate of Adele M. Downing, deceased. From an order of the Appellate Division, Second Department, reversing a decree of the Surrogate's Court, directing a sale of real estate for the payment of debts and dismissing the petition, John T. Pirie, a creditor, appeals. Affirmed.

For prior report, see 117 N. Y. Supp. 753.

Charles I. Wood, for appellant.

Charles C. Suffren, for respondent.

HAIGHT, J.

Adele M. Downing died in Kings county on September 29, 1905, seised in fee of the premises described in the decree, leaving a last will and testament, by which she devised such premises to one Elizabeth A. Downing, her daughter-in-law, whom she appointed sole executrix under her will. It further appears that Elizabeth A. Downing conveyed the land in question to one Raphael Krasnow on the 16th day of December, 1905, and subsequently, and within three years of the testatrix's death, John T. Pirie petitioned the surrogate for a sale of such real estate for the payment of debts, alleging in his petition ‘that the unpaid debts of the decedent and the name of each creditor or person claiming to be a creditor are as follows: Susan Wright, Glen Cove, Nassau Co., N. Y., $893.90, and interest from November 8, 1899. John T. Pirie, Sea Clieff, Nassau Co., N. Y., $325, and interest from December 17, 1896.’ Separate answers were interposed by Elizabeth A. Downing and Raphael Krasnow, the purchaser, putting in issue the claim of the petitioner as a creditor, and alleging that it did not accrue within six years before the commencement of the proceeding. At the conclusion of the trial before the surrogate of the issues raised, the respondent, Krasnow, moved to dismiss the proceeding as to the petitioner's claim upon the ground that it had been affirmatively shown that the statute of limitations had run against the claim, and upon the further ground that the facts alleged in the petition had not been proven. The motion was denied, and an exception taken. At the commencement of the trial Krasnow also moved to dismiss the petitioner's claim on the ground that, on the face of the petition, the statute of limitations had run against it. This was also denied.

The Appellate Division appears to have entertained the view that the Surrogate's Court did not obtain jurisdiction of the proceeding, for the reason that the facts alleged in the petition were not sufficient to establish the existence of a debt so far as the petitioner's claim was concerned. With referenceto this contention we have already quoted the language of the petition, in which the claim is set forth. It is quite true that the facts out of which the claim arises are not set forth. It is merely stated that the decedent was indebted to the petitioner in the sum of $325, and interest from December 17, 1896. No application appears to have been made to have the claim made more specific, or the facts given out of which it arose, nor was the attention of the surrogate called thereto. The motion made at the opening of the trial to dismiss, on the ground that it appeared upon the face of the petition that the statute of limitations had run, certainly did not raise the question. Neither does the motion at the end of the trial, to the effect that it has affirmatively been shown that the statute of limitations has run against the claim. These motions had reference to the statute of limitations, and not to the sufficiency of the allegation. The only other motion appearing at the close of the trial was to the effect ‘that the petition does not state facts enough to make a case for the sale of real property, under the law proceeded under by the petitioner,’ but this motion was very general. The inference to be drawn from it was that the petitioner had a claim, but not such a claim as would authorize the sale of real property to pay it. It does not call attention to the defect now relied upon. We, therefore, conclude with reference to this contention that the reversal could not properly have been based upon the insufficiency of this allegation of the petition.

The petitioner offered in evidence a mortgage executed by the decedent to one Eliza J. McCormack, and an assignment thereof to the petitioner, which mortgage was recorded in Queens county clerk's office February 9, 1892, in Liber 598 of Mortgages, dated February 1, 1892, for $1,000, given to secure two notes of $500 each, made by the decedent to the mortgagee, McCormack, one payable in 6 months, and the other in 18 months from date, with interest. This was received in evidence, and thereupon a note in every respect corresponding with date and amount of the second note described in the mortgage, payable in 18 months, was produced by the petitioner and offered in evidence. An objection was interposed by Krasnow that it was immaterial, irrelevant, and incompetent, and on behalf of Dowling that it had not been sufficiently proven. The objections were overruled, and the note was received in evidence, to which exceptions were taken. The note and the mortgage were parts of a single transaction, one specifically pertaining to the primary obligation, and the other collateral thereto. Kay v. Whittaker, 44 N. Y. 565, 571. The collateral lien of the mortgage could have no legal existence when separated from the note and transferred to others than the holder of the note, but so long as the two remain together, owned and possessed by the same person, they operate together, and are obligations for the payment of the same indebtedness. Bergen v. Urbahn, 83 N. Y. 49. The mortgage, as we have seen, was executed by the decedent February 1, 1892, acknowledged February 6, 1892, and recorded February 9, 1892, in the office of the clerk of Queens county. It, therefore, was an instrument that was entitled to be received in evidence without further proof. The acknowledgment of the mortgage of necessity embraced an acknowledgment of the matters therein stated, including that of its being a collateral security for the payment of the note described. It is thus an admission of the making of a note corresponding in date, names, and amount with that recited in the mortgage, and is prima facie evidence to that extent of the note securred thereby. But this is not sufficient to permit the note to be received in evidence, or judgment entered thereon. The mortgage merely establishes that there was such a note outstanding. It does...