Umscheid v. Simnacher

Decision Date03 December 1984
Citation482 N.Y.S.2d 295,106 A.D.2d 380
PartiesJulia UMSCHEID, Appellant, v. Matilda SIMNACHER, Respondent.
CourtNew York Supreme Court — Appellate Division

Donald Cappillino, Pawling, for appellant.

Corbally, Gartland & Rappleyea, Poughkeepsie (Paul O. Sullivan, Poughkeepsie, of counsel), for respondent.



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:

"Julia Umscheid has helped me since my husband died. Julia is a good friend to me. She takes good care of my animals. Without her help I would be a mess. She gave me many hours of happiness. She did everything so I could live in my home which meant everything for me. I want Julia to be paid for her services when I sell a piece of property."

The second document, which purports to be a power of attorney given by the respondent to the petitioner on June 9, 1980, states that,

"I, MATILDA SIMNACHER, have this day given full and complete power of attorney to my dear friend, Julia Umscheid. I make this memorandum not to limit the power of attorney in any way, but to make it clear that I want Julia Umscheid to sell my real property in Pawling. I also want to reimburse Julia Umscheid for all the things she paid for me, taxes, oil, groceries and so on. I also want to pay Julia Umscheid for coming up to my house and looking after me, my property, and my animals."

The law is well settled that

"in order for a promise to be enforceable as a contract, the promise must be supported by valid consideration * * * The essence of consideration is a legal detriment that has been bargained for and exchanged for the promise. In short, the detriment must induce the promise * * *

"The general rule is that past consideration is not consideration * * * A promise supported by past consideration is unenforceable because the detriment did not induce the promise. That is, 'since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise' " (Citibank, Nat. Assn. v. London, 526 F.Supp. 793, 803).

New York law, however, provides otherwise under certain circumstances. Section 5-1105 of the General Obligations Law states that

"promise in writing and signed by the promisor or by his agent shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed."

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:

"As a result of the testimony taken by the Court and as a result of all the evidence that is before the Court, the Court finds that Matilda Simnacher did not have the requisite mental capacity to execute the power of attorney on June 9, 1980, and that the memorandum on the same date which indicates her desire to see to it that Mrs. Umscheid be paid is affected by the same lack of requisite mental capacity. The foundation or basis for this is the testimony of the two physicians who had contact with her during this period of time, Dr. Morrison and Dr. Clark, that Matilda Simnacher did not understand the quality and nature of the power of attorney or for that matter the memorandum which she signed at Julia Umscheid's home * * * I now find that sh...

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