Simon v. Potts

• Decision Date: 04 January 1962
• Citation: 225 N.Y.S.2d 690,33 Misc.2d 183
• Court: New York Supreme Court
• Parties: Morris SIMON, Plaintiff, v. David M. POTTS, John Kadel, Abraham Wilson and David M. Potts, co-partners doing business under the firm and style name of Kadel, Wilson & Potts, and Chemical Bank New York Trust Co., Defendants. ; Special Term, Albany County

Page 690

225 N.Y.S.2d 690

33 Misc.2d 183

Morris SIMON, Plaintiff, v. David M. POTTS, John Kadel, Abraham Wilson and David M Potts, co-partners doing business under the firm and style name of Kadel, Wilson & Potts and Chemical Bank New York Trust Co., Defendants.

Supreme Court, Rensselaer County; Special Term, Albany County.

Jan. 4, 1962.

Murphy, Aldrich, Guy, Broderick & Simon, Troy, for plaintiff.

Maynard, O'Connor & Smith, Albany, for defendant Chemical Bank New York Trust Co.

Nicholas R. Jones, New York City, for defendants David M. Potts and Abraham Wilson.

ELLIS, J. STALEY, Jr., Justice.

This is a motion for an order dismissing the complaint herein pursuant to the provisions of subdivision 4 of rule 106 of the Rules of Civil Practice on the ground that the complaint fails to state a cause of action. The complaint herein alleges that a certain letter dated November 19, 1959 written by the defendant, David M. Potts, to the plaintiff is 'false, libelous, vicious and defamatory' and by reason of the publication of said letter 'the plaintiff has been held up to contempt and reproach, has been greatly injured in his reputation, and has suffered great pain and mental anguish and has been irreparably injured in his profession and professional standing'.

The alleged libelous letter was an incident in a long and bitter will contest pending in the Surrogate's Court of Rensselaer County in the matter of the probate of the last will and testament of Monroe L. Dix. The said last will and testament was executed on August 14, 1958 and Monroe L. Dix died on August 30, 1958, a resident of Rensselaer County and State of New York. On the 9th day of September 1958 a petition was filed in Rensselaer County, Surrogate's Court for the probate of said last will and testament by David C. Anchin, the executor named therein. Thereafter, one Rose Selby, a distributee of said decedent, appeared in the probate proceedings and filed an answer and objections to the probate of said instrument. On July 27, 1959 the Chemical Corn Exchange Bank, an alternate executor and trustee named in the instrument offered for probate, was appointed temporary administrator of the estate of Monroe L. Dix by order of the Surrogate's Court of Rensselaer County.

The defendants in this action for libel are David M. Potts, individually, John Kadel, Abraham Wilson and David M. Potts, as co-partners in the law firm of Kadel, Wilson and Potts, Esqs., and the Chemical Bank New York Trust Company (successor to Chemical Corn Exchange Bank).

The petitioners and their respective attorneys in the probate proceeding on the date of the publication of the alleged libelous letter were as follows:

Chemical Bank New York Trust Company and David C. Anchin appeared by Kadel, Wilson and Potts, Esqs. with the law firm of Wager, Taylor, Howd and Brearton, Esqs. as counsel; Elynor M. Dix, widow of the decedent and a legatee named in said will, appeared by Joseph B. Mulholland, Esq. with Morris Simon, Esq. and the law firm of Murphy, Aldrich, Guy, Broderick & Simon, Esqs. as counsel; Rose Selby, as contestant, appeared by Krause, Hirsh, Gross & Heilpern, Esqs.

During the course of the probate proceedings numerous motions, appeals and cross appeals were instituted and were reported in the New York Reports as follows: In the Matter of Dix' Will, 15 Misc.2d 194, 181 N.Y.S.2d 936, appeal dismissed 10 A.D.2d 589, 195 N.Y.S.2d 619; 21 Misc.2d 864, 201 N.Y.S.2d 293, affd. 11 A.D.2d 555, 199 N.Y.S.2d 957, leave to appeal to Court of Appeals denied 9 N.Y.2d 712, 213 N.Y.S.2d 1025; 23 Misc.2d 443, 201 N.Y.S.2d 408, appeal dismissed 11 A.D.2d 747 and 960, 204 N.Y.S.2d 118 and 206 N.Y.S.2d 566. Also 10 A.D.2d 775, 200 N.Y.S.2d 366; 12 A.D.2d 675, 210 N.Y.S .2d 502, Cases 13 and 14.

The record on appeal in the appeal decided by the Appellate Division, 3d Department in 12 A.D.2d 675, case 13, 210 N.Y.S.2d 502, is particularly pertinent to this motion since the appeal therein was from an order of the Surrogate's Court of Rensselaer County which order directed that a copy of a letter dated November 11, 1959, written by the plaintiff herein and addressed to The President, Chemical Bank New York Trust Company, 30 Broad Street in the City of New York and State of New York, and the copy of the answering letter of Kadel, Wilson and Potts, Esqs. dated November 19, 1959 should not be considered as part of the record of the aforesaid probate proceeding.

The latter letter contains the alleged libelous statements and to properly consider the allegations of the complaint herein, the two letters are fully set forth as follows:

'November 11, 1959

'(Personal and Confidential)

'The President

'Chemical Bank New York Trust Company

'30 Broad Street

'New York City, New York

'Re: Estate of Monroe L. Dix

'Dear Sir:

'The Chemical Corn Exchange Bank was appointed Temporary Administrator of the Estate of Monroe L. Dix, and an Appeal from that Order is now pending in the Appellate Division of the Third Judicial Department. We are counsel to Joseph B. Mulholland, attorney for the widow, Elynor M. Dix. The record reflects a sordid picture of what the widow contends is a spurious document, and since your Bank is now the successor to Chemical Corn Exchange Bank, as Temporary Administrator, we are compelled to write you, direct, in view of the unwarranted conduct of those who Corn Chemical chose to act as attorneys for the Bank in the capacity of Temporary Administrator.

'Mrs. Dix and her husband (the decedent) owned a horse named 'Lady Pace' and it is the contention of Mrs. Dix as is evidenced by the enclosed photostatic letters, that she owned a 3/4 interest in said horse, and that Mr. Dix owned a 1/4 interest at the time of his death. The continuance of the ownership of said horse only resulted in expense for maintenance and care, which was unwarranted. It was therefore obvious that the horse should be sold and disposed of, in order to terminate this unwarranted expense. The horse was ultimately sold for $4000.00--Mrs. Dix, therefore, is entitled to $3000.00. Mrs. Dix consented to the sale of the horse for that price, as did the Bank, upon a petition made by the Bank to the Surrogate's Court of this County, said Bank, as Temporary Administrator, to retain the money until there was a determination as to how it should be distributed. You will find herewith enclosed a photostat of a letter under date of September 8, 1959, addressed to Hager, Taylor, Howd & Brearton, indicating our position in behalf of Mrs. Dix. Nothing has been done to date. We also enclose herewith photostat of a letter dated September 9, 1959, received from Hager, Taylor, Howd & Brearton, who have been acting as counsel for Kadel, Wilson & Potts, attorneys. Needless to say, we have not agreed, and do not now agree with Mr. Brearton's contention that a fifty-fifty interest existed. Enclosed you will also find a photostat of our letter dated September 17, 1959, which is self-explanatory, wherein we demanded that Mrs. Dix be paid her interest in the horse. Had either Mrs. Dix or we known of the unwarranted attitude on the part of your counsel, in behalf of the Bank, we should never have consented to the sale of the horse . In the petition made by your Mr. Ralph Harrington, personal trust officer sworn to on August 26, 1959, in paragraph '7' thereof, Mr. Farrington sworn that--'Elynor M. Dix asserts a three-quarters interest in said horse. Petitioner has not been able as yet to determine the precise extent of decedent's interest in the horse.' Mr. Farrington, and all other officers of your Bank were guided by and informed by Mr. David Potts, as to all matters pertaining to this Estate. You will notice from the photostat of our letter of September 17, 1959, that we stated--'If the Temporary Administrator can establish any contrary position, we shall be glad to receive such information or evidence, and give it careful consideration.' We meant what we said, but the Bank and Potts eloquently kept silent until we received, under date of October 7, 1959, a purported letter from Hager, Taylor, Howd & Brearton, enclosing a purported letter from Mr. Potts, referring to an alleged agreement relating to this horse, dated October 9, 1957, almost two years ago.

'On several occasions, by telephone, we requested that the original agreement be produced for our examination and the examination of Mrs. Dix. This we were promised, but the promise was never kept and on October 15, 1959, we addressed a letter to Messrs. Hager, Taylor, Howd & Brearton, a copy of which was also mailed to Kadel, Wilson & Potts, and a photostat of that letter is also enclosed herewith. Up to this very moment, no attempt, effort or agreement has been suggested or offered by your counsel, to exhibit this alleged purported agreement, of which we were furnished a Thermofax copy. If your Bank demanded payment upon a promissory note and the maker asked to see the note to determine its existence, propriety or genuineness, I am positive that your Bank would not hesitate a minute, to exhibit the original note before payment was made. We have done nothing less and nothing more.

'On August 19, 1959, at The Manufacturers Trust Company, when a box of the decedent was opened, we talked about the advisability of selling this horse to your Mr. Fimbel, in the presence of Mr. Potts. Prior to that time, we talked to Mr. Fimbel by long distance telephone. Mr. Potts and Mr. Fimbel therefore knew, before any order was granted authorizing the sale, that it was desirable to sell this horse--yet, not a word from Potts that he had a purported alleged agreement which he now refuses to exhibit the original for verification and other purposes.

'We have addressed this letter to you as the Head of a Bank, because we are satisfied that as President, you undoubtedly know nothing about what's going on in this matter, but since your Bank has been appointed as Temporary Administrator, and it is your...