65 N.Y.S. 288 | N.Y. App. Div. | 1900
The parties to this action, being interested in the estate of one Francis W. Lasak, whose will was in dispute,, entered into an agreement with others interested in the estate by which a scheme of settlement,. advised by Galvin Frost, was to be carried out. Annexed to this proposed scheme was an agreement, to be signed by all those interested in the estate, and which appears to have been agreed to by all, the plaintiffs, however, making their consent subject to the following condition: “We agree to above on condition that we receive $180,000 net, and that Mrs. Ives receive surplus, if any, under the will, and make up deficiency.” Mrs. Ives accepted. the condition as follows: “ I agree to modify the above agreement by accepting the conditions contained in above, signed by Mrs. Chauvet and Albert Chauvet.”
To carry this understanding into effect, a formal instrument was executed by the parties, by which, after providing that all Of the property of the estate should be conveyed and transferred, to Mr. Frost, it was agreed that out of the proceeds of the sale thereof the sum of $50,000 should be paid to the plaintiff Albert L. Chauvet; that various other payments should be made to. the persons named, 'and that out of one-third of the remainder there should be paid to the plaintiff Cordelia D. Chauvet the sum of $130,000 ; and that “if the said last-mentioned one-third share shall be .insufficient to pay the said sum of one. hundred and thirty thousand dollars' to Mrs.
The court below dismissed the complaint upon the ground that the action was prematurely brought, the learned judge in his opin
■ The substantial question is whether, under these agreements, the obligation of the defendant was a mere collateral undertaking that the plaintiffs would receive upon the final settlement of Frost’s accounts the sum of .$180,000, or an original and absolute promise to pay that sum to Mr. and Mrs. Chauvet in case they were unable to collect it from Mr. Frost. I am inclined to think that there was here an original promise, and that the plaintiffs were entitled to
I think, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellants to'abide the event.
Patterson, Bumsey and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event. '