Place v. Hayward

• Decision Date: 10 December 1889
• Citation: 23 N.E. 25,117 N.Y. 487
• Parties: PLACE v. HAYWARD.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 487

23 N.E. 25

PLACE

v.HAYWARD.¹

Court of Appeals of New York.

Dec. 10, 1889.

Appeal from superior court of New York city, general term.

Charles F. Wells, for appellant.

J. I. Hayward, pro se.

EARL, J.

This action was brought by the plaintiff, as sole acting executor of Susan A. Place, deceased, against the defendant, to recover three sums of money alleged to have been received by him to and for the use of the plaintiff. One item was a sum of $10,000 and upwards, alleged to have been received by him upon a bond and mortgage which came to the plaintiff as executor. The other two items, amounting together to about $12,000, were alleged to have been received by him upon two endowment policies issued to the testatrix upon the life of her husband, James K. Place, which became due subsequently to her death, in November, 1885. The action was referred to a referee, and tried before him, and at the close of the plaintiff's evidence the defendant, without announcing that he rested his case, moved ‘that the complaint be dismissed on the merits,’ and the referee granted the motion, and the plaintiff's counsel excepted. Thereafter the referee made his report, containing findings of fact and of law, and concluding that the complaint should be dismissed on the merits, and judgment rendered against the plaintiff on the merits of the action, with costs to the defendant. Subsequently, upon the settlement of the case, this took place: ‘On settlement of case on appeal, the plaintiff's attorney having in his proposed case given the following notice: ‘A motion will be made upon the case before the referee to change or modify his findings, so that the decision on the final motion will be judgment for the defendant, dismissing the complaint, with costs, and not a judgment or decision or finding upon the merits,’—and the plaintiff's attorney having made said motion, the same is denied by the referee on the whole case, and the plaintiff's attorney excepts.' Section 1209 of the Code provides as follows: ‘A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.’ The defendant, by procuring a dismissal of the complaint on the merits, probably had this provision of the Code in mind, and intended to procure a judgment that would bar a new action for the same cause; and the plaintiff's counsel, by the motion he made on the settlement of the case, sought to have the dismissal in such form that the judgment would not bar a new action. The precise scope of that provision of the Code we do not now determine. Nevertheless what the referee did was to nonsuit the plaintiff. We can give no other significance to the proceeding. Therefore he should have made no findings of fact except such as would justify a nonsuit upon the trial. Under the Code the referee was required to make findings of fact and of law after granting the nonsuit; but he had no right to make any findings of fact depending upon disputed or inconclusive evidence. Therefore, to maintain this judgment, the defendant is bound to show that there was no disputed question of fact which, upon a jury trial, the court would have been required to submit to the jury, and that, upon the undisputed evidence, he was entitled to judgment. Scofield v. Hernandez, 47 N. Y. 313.

As these moneys were received by the defendant after the death of the testatrix, and as all the dealings with reference thereto between him and the plaintiff took place after her death, he claimed upon the trial that the plaintiff could not, in his representative capacity, maintain this action, but that the same should have been instituted by him in his individual name. But the referee held, before any evidence had been given, that the plaintiff could maintain this action in his representative capacity, and that ruling then became the law of the case; and, even if erroneous, the defendant, having had judgment in his favor, cannot now complain of it. But upon the argument here he expressly waived any objection that the plaintiff could not maintain this action in his representative capacity, and therefore this nonsuit cannot be maintained upon the ground, if a valid one, (which we do not determine,) that the plaintiff, in his representative capacity, could not maintain the action. The plaintiff is not, by anything which appears in the case, estopped from claiming against the defendant that the proceeds of the mortgage and of the insurance policies received by him belonged to, and were payable to, the plaintiff. The defendant, during all the times of the transactions under consideration, was the plaintiff's attorney, and the evidence tends to show that the plaintiff during those times acted under, and implicitly relied upon, his counsel and direction. It appears without dispute that there was fear on the part of the defendant,—whose wife was a daughter of the testatrix and a sister of the plaintiff, and interested in the estate of her mother,—as well as on the part of the plaintiff, that the mortgage and the insurance policies might be seized by adverse claimants, creditors of the husband of the testatrix; and therefore the plaintiff claims that, under the advice of the defendant, on the 22d day of November, 1869, he assigned the mortgage to him for the purpose of protecting the same against such adverse claimants. The consideration expressed in the assignment was $12,000. At the same time the defendant executed to the plaintiff the following instrument: ‘I, J K. Hayward, agree to reassign the mortgage of $25,000 to Barker Place, on the repayment of the sum, principal and interest, loaned to Barker Place by said Hayward. J. K. HAYWARD.’ The plaintiff and his father, who at the time had the principal management of the estate of the testatrix, both testified that the assignment of the mortgage was merely formal, without any consideration whatever, and that not a dollar at any time was paid to the plaintiff for the same. On the 16th day of April thereafter, the defendant, by an assignment absolute in form, in consideration of $12,000 paid to him by W. J. A. Fuller, assigned the mortgage to him; and on the [117 N.Y. 494]23d day of April thereafter Arthur T. Sullivan, who was at that time one of the executors of the will of Susan A. Place, for the recited consideration of one dollar, also executed an assignment of the same mortgage to Fuller. The mortgage was subsequently foreclosed, and Fuller received, as the net proceeds of the foreclosure, $33,949.29; and, the defendant having repaid to Fuller the $12,000 which he had paid for the mortgage and the interest thereon, Fuller gave a check for the amount, payable to the order of the defendant and to the plaintiff as executors. Twenty-five thousand nine hundred and forty-nine dollars and twenty-nine cents of the proceeds of that check came to the hands of the plaintiff, and $8,500 thereof came to the hands of the defendant; and that sum, at least, and the interest thereon, the plaintiff claimed to recover in this action.

These various assignments do not estop the plaintiff from recovering in this action, and it was not necessary for him to bring an action to set them aside before he could recover. If it is true, as claimed by the plaintiff, and as testified to by him and his witnesses, that the defendant never paid a dollar for the mortgage, and received the $8,500 without any consideration, under an original understanding and agreement by which the proceeds of the mortgage were really to belong to the estate represented by the plaintiff,—if he received such proceeds, professing to the plaintiff to act in his interest, and in the interest of the estate,—then, when he received them, they became money which belonged to the estate, and the plaintiff can recover the money in this form of action for money had and received. The money having been received by the defendant in pursuance of the arrangement and understanding between him and the plaintiff, he cannot set up the assignment to him, which has become functus officio, as an absolute bar to plaintiff's claim. The instruments executed are evidence, and may be very persuasive evidence, in the defendant's favor, showing that he and Fuller became the owners in some way way successively of the mortgage,—he as pledgee, and Fuller as absolute owner. But their force and effect as evidence are to be weighed in connection with all the other facts, and it cannot be said that there is a very strong conflict in the evidence, when three witnesses on the part of the plaintiff testify absolutely that there was no sale of the mortgage, and no transfer of it upon any consideration whatever.

The considerable delay which took place after the transactions of which the plaintiff complains, before he commenced this action, furnishes no defense to the action, but is a fact to be weighed with all the other evidence in the case, nor does the fact that the plaintiff entered in the inventory of his mother's estate the sum of $12,000 as received from the mortgage furnish absolute evidence that he actually received that sum from the defendant, or from any other source. He testified that it did not represent money received by him, but that he inserted the amount in his inventory under the direction of the defendant, and that he verified the inventory at the same instigation, although the item was not in fact true. The facts connected with the making of the inventory do not estop the plaintiff, but constitute evidence against him, to be weighed with the other evidence.

So, too, the plaintiff must not necessarily fail in this action because these assignments of the mortgage and the insurance policies were made to keep them out of the way of the creditors, not of Mrs. Place, but of her husband. There was no intent to...