Umscheid v. Simnacher
Decision Date | 03 December 1984 |
Citation | 482 N.Y.S.2d 295,106 A.D.2d 380 |
Parties | Julia UMSCHEID, Appellant, v. Matilda SIMNACHER, Respondent. |
Court | New York Supreme Court — Appellate Division |
Donald Cappillino, Pawling, for appellant.
Corbally, Gartland & Rappleyea, Poughkeepsie (Paul O. Sullivan, Poughkeepsie, of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, BRACKEN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to article 77 of the Mental Hygiene Law, the petitioner-conservator of the respondent's estate appeals from an order of the Supreme Court, Dutchess County, dated November 3, 1983, which, inter alia, (1) denied the petitioner's application for reimbursement for expenses incurred in the amount of $46,973; and (2) in effect, removed the petitioner as conservator.
Order affirmed, without costs or disbursements.
By order dated October 21, 1982, Julia Umscheid, the petitioner, was appointed conservator of the "income and assets" of Matilda Simnacher, the respondent, pursuant to article 77 of the Mental Hygiene Law. The court also ordered, as is here relevant, "that the compensation of the conservator shall be the same as the compensation allowed by the committee of the property appointed pursuant to Article 78 of the Mental Hygiene Law, which compensation has not been waived in whole or in part by the conservator". A hearing was conducted, after which the court, by order dated November 3, 1983, inter alia, denied in all respects the petitioner's application for reimbursement in the amount of $46,973, and, sua sponte, in effect, removed the petitioner as conservator.
On this appeal, the petitioner contends that she should be reimbursed for the domestic services she rendered to the respondent from 1973 until May, 1980. The petitioner predicates her contention on two documents which, she alleges, were signed by the respondent. The first, a handwritten letter dated November 6, 1979, states:
To be enforceable pursuant to section 5-1105 of the General Obligations Law, the writing must contain an unequivocal promise to pay a sum certain, at a date certain, and must express consideration for the promise (Sarama v. John Mee, Inc., 102 Misc.2d 132, 133, 422 N.Y.S.2d 582; Citibank, Nat. Assn. v. London, supra, p. 803).
In our view, the writings relied upon by the petitioner do not contain an unequivocal promise to pay a sum certain at a date certain. Moreover, the consideration was not "expressed" within the meaning of section 5-1105. The consideration alluded to in the documents, viz., services rendered on the respondent's behalf, is vague, imprecise, and, indeed, is without meaning. In short, resort to evidence extrinsic to the documents is necessary to give meaning to the consideration "expressed" in those documents (see Persico Oil Co. v. Levy, 64 Misc.2d 1091, 1092, 316 N.Y.S.2d 924).
Finally, in connection with the enforceability of the two documents, Special Term found as follows at the conclusion of the hearing:
...
To continue reading
Request your trial-
Cambridge Capital LLC v. Ruby Has LLC
...expect compensation for a benefit conferred gratuitously upon another." (alteration in original) (quoting Umscheid v. Simnacher , 106 A.D.2d 380, 482 N.Y.S.2d 295, 298 (2d Dep't 1984) )).For these reasons, Counts Seven and Eight are dismissed.II. Cambridge Capital's Motion to Dismiss the Am......
-
Genger v. Genger
...656 (S.D.N.Y.2008) ; Movado Grp., Inc. v. Presberg, 259 A.D.2d 371, 371, 687 N.Y.S.2d 116 (N.Y.App.Div.1999) ; Umscheid v. Simnacher, 106 A.D.2d 380, 482 N.Y.S.2d 295, 297 (1984). For example, courts have held that the statements “past work on the Company's behalf” and “services rendered on......
-
IN RE THOMSON McKINNON SECURITIES, INC.
...is not persuasive. Although past consideration is usually not adequate consideration to support a promise, Umscheid v. Simnacher, 106 A.D.2d 380, 482 N.Y.S.2d 295, 297 (1984), there is an exception to this general rule which is set forth in section 5-1105 of the New York General Obligation ......
-
Cyberchron Corp. v. Calldata Systems Development
...479, 567 N.Y.S.2d 404, 408 1st Dept 1991; Moors v. Hall, 143 A.D.2d 336, 532 N.Y.S.2d 412, 414 2d Dept 1988; Umscheid v. Simnacher, 106 A.D.2d 380, 482 N.Y.S.2d 295, 298 2d Dept The defendant contends that the doctrine of quantum meruit is related only to the performance of services, rather......