Slooten v. Wheeler

• Decision Date: 28 November 1893
• Citation: 140 N.Y. 624,35 N.E. 583
• Parties: VAN SLOOTEN v. WHEELER.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 624

35 N.E. 583

VAN SLOOTEN

v.WHEELER.

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from supreme court, general term, second department.

Proceeding by Mary L. Van Slooten against Charles H. Wheeler, as executor of the will of Harry E. Dodge, deceased, to establish a claim against testator's estate. From a judgment of the general term (21 N. Y. Supp. 329) reversing a judgment of the special term confirming the report of a referee dismissing the claim, defendant appeals. Reversed.

Hubbard & Rushmore and John D. Pray, (George G. Reynolds, of counsel,) for appellant.

Merritt E. Haviland, (Martin J. Keogh, or counsel,) for respondent.

EARL, J.

The testator died on the 3d day of June, 1886, leaving one descendant, a son, and Leaving a will in which the defendant was appointed executor. In September, 1889, the plaintiff presented a claim against the estate of the testator for $20,000, which, in her verified statement thereof, was described as follows: ‘Said Harry E. Dodge, deceased, in or about the year 1886, was the owner of the premises No. 278 Henry street, in the city of Brooklyn, upon which said premises there was a mortgage of $20,000, owned by and belonging to me; and that in or about the month of May, 1886, said Harry E. Dodge, deceased, sold said premises, and at his request I executed a satisfaction piece of the said mortgage, with the understanding and agreement that said Dodge would pay me the amount of said mortgage upon receiving the consideration price of said premises from the purchaser thereof, whereupon thereafter he gave me a check for the face of said mortgage, to wit, the sum of $20,000, which said sum has never been paid to me, and against which there are no offsets or counterclaims of any name or nature whatsoever.’ This claim was disputed by the defendant, and was then by consent referred to Albert E. Lambe to hear and determine the same. The case was brought to trial before the referee, and he made his report, deciding it in favor of the defendant, dismissing the claim. His report was confirmed, and judgment was entered thereon in favor of the defendant. From that judgment the plaintiff appealed to the general term, and there the judgment was reversed upon the facts, and a new trial was ordered before another referee. 15 N. Y. Supp. 591. Thereafter James McKeen was appointed referee, and the case was again brought to trial before him; and upon substantially the same facts as had appeared upon the first trial he made his report dismissing the claim, and his report was confirmed, and judgment was entered thereon. From that judgment the plaintiff again appealed to the general term, and it reversed the judgment upon the facts; and, holding that the case was a plain one for the plaintiff, and could not be materially changed upon a new trial, it ordered judgment for the plaintiff for the amount of her claim, with interest and costs, amounting in all to upwards of $28,000. 21 N. Y. Supp. 329. From that judgment the defendant has appealed to this court.

We are not able to take the same view of the evidence in this case as that which found favor with the learned general term. We could rest our decision upon the able opinion of the referee before whom the case was last tried, and find therein ample justification for the conclusion we have reached. But the amount involved is so large, and the difference between the two referees and the general term is so wide and emphatic, that it is most proper that we should give our own reasons for our judgment. Harry E. Dodge was a widower, and for some years before his death had been a member of the Wall street banking firm of Clark, Dodge & Co. At his death he was apparently worth, over and above all his debts, aside from this claim of the plaintiff, nearly $200,000. He became acquainted with the plaintiff, who was then a widow, at least as early as August, 1877. Her name was then Mrs. Miner, she having, since the death of Mr. Dodge, been married to Mr. Van Slooten. Soon after their acquaintance the plaintiff and Dodge commenced to live together in Brooklyn, first at the house of one of the plaintiff's witnesses, Mrs. Chertizza, then at a house in Livingston street, and then in her house in Sidney place, where he died. On the 11th day of March, 1882, he gave her his bond and a mortgage upon a house in Henry street to secure the payment to her of the sum of $20,000 on demand, with interest from the date thereof. He had a shock of paralysis on the 14th day of April, 1886, another on the 7th day of May, and a third on the day of his death. The mortgage remained on the house at Sidney place until April 21, 1886, seven days after the first shock of paralysis, when she sent it to her attorney with the request that it should be recorded, and he cause it to be recorded on that day. There is nothing to show what the consideration for that mortgage was, and it is very doubtful whether it had any consideration. If it had been given for money borrowed or for property purchased, we see no reason to doubt that the fact could have been proved. Why did Mr. Dodge, a rich man, give the mortgage? Why was it made payable ‘on demand,’ with interest from date? Why was it permitted to slumber four years without record? Why was it, after slumbering so long, recorded soon after the attack of a disease usually fatal? During these four years it does not appear that any interest was paid upon the mortgage, and the bond and mortgage, when delivered to her attorney for record, contained no indorsements of the payments of interest. If the interest had been paid, as it probably would have been upon a subsisting, vital obligation, it is quite probable that some at least of the payments could have been proved. But this is not all. The very next day after the record of the mortgage she executed a satisfaction piece certifying that the mortgage had been paid, and it was on that day discharged of record. The satisfaction piece was drawn, and the acknowledgment thereof was taken, by her attorney, who had the mortgage recorded. Why was the mortgage placed upon record one day, to be satisfied and canceled the next? What transpired between the record of the mortgage at 3 o'clock P. M. of one day and its satisfaction on the next day? If the mortgage was for any reason to be so soon satisfied, why was it not torn up or simply canceled in some way before its record? And what possible reason could there be for recording it? A not improbable explanation is that the mortgage was recorded in violation of some understanding between the parties, and that when Mr. Dodge learned of it he required its cancellation. Mr. Dodge sold and conveyed the Henry street real estate on the 1st day of May for $15,750, and thus we have the fact that the mortgage was for $4,250 more than the value of the property, and this militates somewhat against the theory that the mortgage was a bona fide mortgage to secure a real debt. She alleges in the verified statement of her claim that she satisfied the mortgage upon an agreement with Dodge that he should pay her the amount of the mortgage upon the receipt by him of the purchase price of the property when sold. We must assume that he received the purchase price in cash, because, if he did not, it was easily susceptible of proof. What did he do with the money? If he had deposited that amount in the bank of his firm or in any other bank, that could have been proved. She alleges that he was to pay her mortgage with the proceeds of the sale. Did he not do it? And, if he did not, what became of the money? She says he then agreed to pay her, and, if the mortgage was a valid, subsisting obligation, why did he not do it? She says he did not pay her, and, if he did not, the probability is that the mortgage was given for some undisclosed purpose, and was not intended as a subsisting obligation. We are dealing with probabilities. He being dead, and her mouth being closed by the statute, we must ascertain as well as we can where the balance of the probability is. The bond and mortgage have disappeared. She says that she never received them back from her attorney to whom she had delivered them for record. He testified that he delivered them back to her. What became of them? Were they not destroyed as useless or as paid obligations? She bases her claim entirely upon the bond and mortgage, and she must show affirmatively that at the time of his death the amount named in them was actually unpaid and due to her. In the satisfaction piece she acknowledges that it was paid, and that acknowledgment is prima facie evidence that it was paid, and that she received the money, (Sheldon v. Sheldon, 133 N .Y. 7, 30 N. E. 730,) and she was bound to show affirmatively that that acknowledgment was untrue. This she attempts to do by showing that Mr. Dodge, some time in the month of May, gave her a check for $20,000 upon the firm of Clark, Dodge & Co. The referee found that this check was actually given some time in May. Whether it was given before or after the second stroke of paralysis is uncertain. It was given about that time. If it was intended thereby to pay the amount due upon the mortgage, why was it not given at the time the mortgage was discharged of record? And why, if the mortgage was a real security, did the check not include some interest? If the check was intended for the payment of the mortgage, why did she not demand the money on it before or after the death of Mr. Dodge? She was familiar with business, and with the nature and purpose of checks, and knew how to draw money on them. She never presented it to the drawees for payment, and she was not able to produce it upon the trial of the action. That, like the bond and mortgage, had disappeared. She came before the referee without a particle of written evidence to sustain her large claim. She testified that she had the check at the time of the death of Mr. Dodge, and that a few days thereafter she delivered it to...