72 N.Y.S. 76 | N.Y. App. Div. | 1901
Counter appeals are before us in the record, but in view of the conclusion we have reached, it will not be necessary to consider
After the appeals had been taken, and on the 8tli day of October, 1899, Thomas J. Curtice, the original party plaintiff, died. Prior to his death Mr. Curtice assigned the cause of action set forth in the complaint to his niece, Josephine Aspell, the present plaintiff, who was duly brought into the case. Later Frank H. Campbell died, and Emma L. Campbell was given letters of administration debonis non on the estate of Lewis M. Jayne, deceased, and an order was subsequently made reviving and continuing the action and the appeals herein, and substituting the said Emma L. Campbell as administratrix de bonis non of the estate of Lewis M. Jayne, deceased, as sole defendant and appellant herein.
This, briefly., is the history of the devious ways through which this litigation has come down to us from the first half of the past century, and we are to inquire whether the evidence supports the conclusion that Lewis M. Jayne, the friend and committee' of Thomas J. Curtice, nearly half a century ago, while the latter was confined as a lunatic, corruptly appropriated-to himself the sum of §750, which belonged to the estate in his custody. The complaint alleges a conversion of certain bank notes, somewhat mutilated by fire, owing to the plaintiff’s action while mentally unsound ; the conversion of the profits, or the wrongful deprivation of the profits to the plaintiff, on 130 shares of railroad stock, the amount of such wrongful transaction being placed at $5,785; and the conversion of $750 upon 100 shares of railroad stock. The referee refuses to find anything due to the plaintiff on either of the first alleged causes of action, and as to the third he admits that there is “no direct positive proof that the committee actually received the sum of $2,250 on the sale of the stock to his brother, but that was the market value of the stock at the time he made the sale, and upon the assumption that he acted honestly and in good faith it must follow that he did not make the sale for less than the stock was selling for in the market.” But what is .the evidence in support of the proposition that $2,250 was the market price of this 100 shares of Cleveland' and Toledo railroad stock at the time he made the sale to his brother? It is pi’obably established by the evidence that the market price of this stock on the 14th day
, When we consider that the plaintiff has had the advantage of all of the testimony of Mr. Curtice, without an opportunity for explanation or repudiation by the original defendant, who died while the case was. being tried, and that the evidence thus brought before the referee does not reach the fair requirements in an action depending upon fraud as the basis of recovery, it will not be doubted that it is the duty of this court to reverse the judgment. This conclusion is reached without taking into consideration the fact that all of the matters alleged in the complaint were called to the attention of Mr. Curtice-, at the.time of the settlement in 1863, and it is rather late in the-day to ask for the interposition of a court of equity. If there were any suspicious circumstances they were present in 1EÍ63; the original plaintiff knew that stocks had been advancing in nominal price under the stimulus of an inflated currency; he knew that he had stocks he knew that they had been sold, and he knew that they brought a less- price than the market figures which were prevailing at the time-of the settlement. . It will not be a harsh rule if the courts at
The referee says: “ I do not regard the payments which were made in 1887, 1892-3, nor the receipts for the money paid, which were executed by the plaintiff at that time, of any binding force, as a recognition or revival of the plaintiff’s claim, nor as a compromise, or accord and satisfaction ; those transactions were of an informal and indefinite character,” and in this we are in accord. The defendant at the time of these transactions was apparently a garrulous old man, who seems to have been good natured and inclined to do something to relieve the wants of his old-time friend ; he may even have-felt a certain moral obligation to make good some of the losses growing out of the untimely sale of the railroad stocks of his ward, and to this sentiment may be traced all of the so-called admissions of the defendant, but they have no direct relation to the transaction in reference to the 100 shares of stock, to which alone the judgment relates. It is not necessary, therefore, to devote any further consideration to this branch of the .case, which is open to all of the objections to testimony as to oral admissions (1 Greeul. Ev. [Redf. ed.] § 200), and which does not, at best, reach the crucial question in this case.
The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.
Goodrich, P. J., and Jenks, J., concurred; Sewell, J., dissented; Hirschberg, J., not sitting.
Judgment reversed and new trial granted, costs to abide the final award of costs.