Myers v. Bolton

• Decision Date: 13 December 1898
• Citation: 52 N.E. 114,157 N.Y. 393
• Parties: MYERS et al. v. BOLTON et al.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 393

52 N.E. 114

MYERS et al.

v.BOLTON et al.

Court of Appeals of New York.

Dec. 13, 1898.

Appeal from supreme court, general term, First department.

Action by Sarah L. Myers and others against Thomas Bolton and others for an accounting. From a judgment on report of referee in favor of plaintiffs, defendants appealed to the general term, and, from a judgment of affirmance (35 N. Y. Supp. 577), defendants appeal. Modified.

Alex. Thain, for appellants.

T. W. Foster, for respondents.

VANN, J.

On the 29th of September, 1882, Ann Bolton, the mother of all the parties except William H. Birchall, who was her adopted son, died, seised of some valuable real estate situated on the Bronx river, at a place known as Bronxdale. She left a will dated April 6, 1880, which was duly admitted to probate on the 20th of November, 1882, whereby she devised all of her real property, except a single house and lot, to the parties to this action and Emily B. Norris, a daughter, who died in 1887, intestate and without descendants. She also gave power to her executors to sell any or all of her real estate, either at public or private sale, but gave them no other authority with reference thereto. The most valuable part of her real estate had been leased to her sons, Henry B. and Thomas Bolton, and her adopted son, William H. Birchall, who were co-partners, under the name of the Bronx Company, for five years from March 1, 1880, with the privilege of five years more, which was duly exercised, at a rent reserved of $4,500 a year. Said lessees occupied all of this leased property until 1891, although the most valuable part of it was taken by the city of New York for Bronx park, under chapter 522 of the Laws of 1884, the report of the commissioners of estimate having been confirmed on the 9th of July, 1889. This action was brought to compel the defendants composing said company to account for rents received for the use and benefit of the plaintiffs. Code Civ. Proc. § 1666; 1 Rev. St. p. 750, § 9.

Many questions have been argued before us, but we are satisfied with the disposition made thereof, and the reasons given therefor, by the general term, so far as those questions received expression of consideration in the opinion of that learned court. We will briefly examine two questions, not discussed below, that are pressed upon our attention with great earnestness by the counsel for the appellants.

The defendants who compose the Bronx Company are the only appellants, and they insist that the referee erred in not allowing them, or the two who assumed to control the real estate, as executors, compensation for their services in collecting rents and managing the real estate. It is admitted that, so far as they rendered services for the benefit of their cotenants in common in the condemnation proceedings, they have received compensation already, and that the two executors have received compensation for all the services rendered by them, as such, with reference to the personal estate. The appellants were neither employed nor authorized to collect rents or manage the realty, but they base their claims to compensation therefor upon the theory that their co-tenants acquiesced in their action, and hence impliedly promised to pay what their services were reasonably worth. They raised the question by a request to find duly presented to the referee, under the practice in force at the time of the trial, in these words: ‘The plaintiffs acquiesced in the management by the said defendants, under the title of the ‘Estate of Ann Bolton,’ of the properties left by the deceased.' The referee refused to so find, and the appellants excepted. Unless the evidence was such that it was an error of law for the referee not to find as requested, we cannot reverse the judgment upon the question now under consideration. The case contains no certificate that it includes all the evidence given on the trial, and all that appears on the subject is, in substance, as follows: Prior to the death of Ann Bolton, the appellants and managed her estate, and transacted her business for her. After her death, the executors, assuming that they had power to do so under the will, continued to manage the real estate by renting it, collecting rents, and the like. All the moneys collected went into the business of the Bronx Company, and no account was kept except in the books of that company. No affirmative act of acquiescence on the part of the plaintiffs was shown. From 1882 until 1889, when this action was begun, the appellants collected, received, and retained all the rents, but paid therefrom taxes, insurance, interest on mortgages, and a small amount of the principal. When called upon to account in surrogate's court, in 1889, it was discovered that they had no power over the realty as executors, except to sell it under the power of sale, and thereupon this action was commenced. Whatever they did in the management of the real estate was done without any actual authority from the plaintiffs; and we find no evidence of implied authority, except that the plaintiffs did not take charge of their interests respectively in the real estate, or object to the conduct of the defendants with reference thereto. All the rents collected by the appellants, amounting to nearly $46,000, have been retained by them, except such portions as they paid out for the purposes already mentioned. They paid no part of it to the plaintiffs, and, while it does not appear expressly that a demand was made upon them for it, the evidence is very suggestive that demands were made but not complied with. The appellants pleaded no counterclaim for compensation in their answer, nor did they move to amend the pleadings in that regard upon the trial. All the money collected they mingled with their own, and have had the use of it in their business, except as aforesaid. While they owe the...