Mereminsky v. Mereminsky

• Decision Date: 29 June 1959
• Citation: 20 Misc.2d 21,188 N.Y.S.2d 771
• Parties: Anna MEREMINSKY, Plaintiff-Respondent v. Fritz MEREMINSKY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 771

188 N.Y.S.2d 771

20 Misc.2d 21

Anna MEREMINSKY, Plaintiff-Respondent v. Fritz MEREMINSKY, Defendant-Appellant.

Supreme Court, Appellate Term, Second Department.

June 29, 1959.

Solomon H. Bauch, New York City, Emmet L. Holbrook, New York City, of counsel, for defendant-appellant.

S. K. & M. B. Goldstein, Brooklyn, Samuel K. Goldstein, Brooklyn, of counsel, for plaintiff-respondent.

Before PETTE, HART and BROWN, JJ.

WALTER R. HART, Justice.

Plaintiff brought this action to recover two installments of $100 each alleged to be due for the months of May and June, 1958 under the terms of an agreement made with defendant on April 21, 1953. Plaintiff is the widow of one Perez Mereminsky and is the stepmother, and also the aunt, of defendant, his son. At the time of his death Perez Mereminsky and the defendant were partners in a watch material business; the father owned a 51% interest and the son 49%.

Perez Mereminsky died on February 14, 1953, leaving a will in which he bequeathed his interest in the watch material business to the defendant and named the defendant as executor. The plaintiff claimed that she, as widow of the decedent, was entitled to a larger share of the estate than had been provided for her in the will, and on April 21, 1953 she and the defendant entered into a written agreement which provided, in part, as follows:

'1. The said parties having determined their respective rights and considered the assets and liabilities of the estate, of said deceased, have and by this instrument do hereby fix the value of the interest of said widow Anna Mereminsky (including the sum paid for consideration of the respect and devotion due to her), to be the sum of Fifteen Thousand ($15,000.00) Dollars, plus a further sum of One Hundred ($100.00) Dollars per month for the rest of her natural life, except as hereinafter stated.

'2. The said sum of $15,000.00 shall be paid by said Fritz Mereminsky as Executor and individually as follows: $1,000.00 by check simultaneously with the execution of this agreement and a like sum by check each and every month thereafter on the 15th day of the month, with a five day grace period, until the said $15,000.00 shall be paid in full. In the event said Anna Mereminsky shall die prior to said payments having been made in full, then and in that event the subsequent unpaid balance shall cease and no longer be paid to the estate of Anna Mereminsky, but shall be equally distributed to Celia Modlinger, Albert Merman, Fritz Mereminsky and Annette Goldstein. Said widow, Anna Mereminsky, shall be deemed to have a valid first prior right to all other rights, claims or encumbrances, in the sum of $15,000.00 against the property and assets of the estate of said decedent as against the rights and claims of Fritz Mereminsky. In the event of the failure or the default of the Executor or Fritz Mereminsky, individually, to pay the said $1,000.00 monthly payments as they become due, then and in such event, at the time of said non-payment and after said five day grace period, said widow, Anna Mereminsky shall have every and all right that she may be entitled to in the estate of the decedent herein, as if this compromise agreement had not been entered into, and, also, said Fritz Mereminsky, individually, agrees to indemnify and pay to said widow the balance then due monthly.

'3. The monthly payments of $100.00 hereinabove provided for shall be made on the 15th day of each and every month commencing with the 15th day of April, 1953, provided however that should Anna Mereminsky remarry then all subsequent payments of $100.00 per month shall cease and come to an end and it is further provided that said monthly payments of $100. shall be conditioned upon the continuance by said Fritz Mereminsky in the same or similar watch material business, regardless of the location of same or whether he will operate as an individual, or as a partner or under a corporate name and it is further provided that said $100.00 monthly payments shall be made by said Fritz Mereminsky individually provided that the net profit of said watch material business is $5,000.00 or more.'

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* * *

'7. At the time said last payment of $1,000.00, totaling $15,000.00, is paid to Anna Mereminsky, general releases are to be exchanged by the parties hereto and said release of Anna Mereminsky is also to include estate of Perez Mereminsky. Said release to Anna Mereminsky is to contain a clause that it is subject to payment of $100.00 per month by Fritz Mereminsky as provided in this agreement.'

The $15,000 was duly paid to the plaintiff, who executed and delivered a receipt and release therefor. The payments of $100 a month were made for a period of five years, from April 1953 to and including April 1958. No payment was made thereafter and this action was commenced on June 18, 1958. The defendant interposed an answer of general denial, and plaintiff moved for summary judgment. Defendant opposed the motion on the ground that his provise to make the payments of $100 a month was qualified and conditional. The motion was denied on July 30, 1958, the decision being as follows:

'Upon the foregoing papers this motion is denied. The question of fact raised in the defendant's affidavit must be adjudicated at a trial and may not be disposed of summarily. The fact that the defendant may have the burden of proving his contention that the business did not earn $5000 net etc. as he claims cannot deprive him of the trial he seeks. It may be he cannot prove it, but the law must give him that opportunity.'

At the opening of the trial it was agreed that no question of consideration was involved. Defendant's counsel stated that the defense would be: (1) That the provision 'provided that the net profit of said watch material business is $5000 or more' is vague and ambiguous in that it does not say what period is to be taken into consideration in determining the profit, and (2) 'The other question is 'upon whom does the burden of proof rest.' If this is a condition precedent then the plaintiff must plead and prove these things before she can recover.' It was stipulated that the defendant had made payments of $100 a month to the plaintiff from April 1953 to April 1958, but defendant's counsel refused to stipulate that those payments were made 'pursuant to the terms of the contract.'

Plaintiff proved the making of the contract and it was marked in evidence. Plaintiff then rested.

Defendant moved to dismiss the complaint on the ground that the plaintiff had failed to make out a prima facie case, arguing that paragraph 3 of the agreement provided for certain contingencies which were conditions precedent, and that the plaintiff had not pleaded or proved that these conditions were fulfilled; furthermore, that the provision with regard to $5,000 net profit was ambiguous and indefinite in that it did not say what period was to be taken into consideration in determining the net profit. Plaintiff's counsel pointed out that the amount of $100 a month was also provided for in paragraph 1 of the contract, which fixes the value of the plaintiff's interest in the estate. He argued that paragraph 3 provided for 'absolute payment with an exception,' and that whether the conditions be called conditions precedent or conditions subsequent, the agreement shows that the payments were to be made, and that if thereafter some condition should occur which would allow the defendant to escape the obligation he might then show it and cease making the payments; that the defendant could escape the obligation to make these payments by proving that his business did not earn $5000 or more. The court ruled that the plaintiff had proved a prima facie case and that the burden now rested upon the defendant to prove his defense in order to escape the obligation imposed by the agreement; that in common parlance earnings of '$5000 or more' meant $5,000 or more a year, and that if some period other than a year had been agreed upon the defendant should so testify. Defendant's counsel then stated for the record that the earnings of the business were $5,000 or more per year, and the trial was adjourned to afford the defendant, who was not in court, an opportunity to come in and testify. Upon the adjourned date no testimony was taken. The defendant rested without offering any proof and renewed the motion made at the end of plaintiff's case.

Point I in defendant's brief on appeal is that 'liability under the contract clause relied on is contingent on the happening of future events,' and Point III is that 'plaintiff neither pleaded nor proved the happening of the contingent events necessary to create liability on the part of defendant.' In support of these points the defendant argues that Clause 1 of the agreement merely fixes the value of the interest of the plaintiff in the estate of her deceased husband and places no obligation of any kind whatsoever on the defendant; that, therefore, in order to establish any obligation on the part of the defendant to make payments to the plaintiff, reliance must be placed solely on Clause 3, and that Clause 3 imposes three separate conditions precedent to the creation of liability to make any monthly payments, namely:

1. That plaintiff remain unmarried;

2. That defendant continue in the watch material business, and

3. That the net profit of the watch material business is $5,000.00 or more.

I do not agree with these contentions. It seems to me (1) that there is implicit in Clause 1 of the agreement a promise on the part of the defendant to pay to the plaintiff the amount of her share of the estate as agreed upon, in consideration for her giving up her right to oppose probate of the will; and (2) that the conditions imposed in Clause 3 are conditions subsequent and not conditions precedent.

The agreement recites, among other...