220 A.D. 480 | N.Y. App. Div. | 1927
We have before us on this appeal the record of a third trial in respect to the validity and amount of a claim filed against an estate. Appeals from the previous trials are considered in Matter of Raymond v. Kelly (201 App. Div. 876; 202 id. 774); Matter of Raymond v. Estate of Davis (210 id. 320). The third trial was in the County Court before a jury upon questions certified by the surrogate. The jury trial was not a matter of right, and the verdict was advisory only. • (Matter of Boyle, 242 N. Y. 342.) As the surrogate, if dissatisfied with the jury verdict, could have disregarded the verdict and made his own determination, so may this court as it has all the power of the surrogate. (Surrogate’s Court Act, § 309; Matter of Burnham, 234 N. Y. 475.) We have come to the conclusion that the verdict of the jury was contrary to the weight of the evidence in respect to the amount of the petitioner’s claim. We find that the parties were joint adventurers, Raymond being entitled to one-third, and Davis to two-thirds of the profits of the adventure, and that upon the transfer of the real estate from Davis to the corporation Davis received stock having a value of $15,000 and $15,000 in cash, from which cash payment, however, he paid $10,000 for indebtedness properly chargeable to the joint adventure, leaving a net amount of $20,000 in his hands. Against this must be charged the purchase price of the Dunbar property and interest, $11,839.95, and the purchase price of the Bramer property with interest, $3,392. The net amount of property in the hands of the administrator— Raymond’s third amounts to $1,589.35, on which interest runs from the date of the filing of the claim, November 19, 1919, and at the entry of the decree July 20, 1926, amounted to $635.74. The amount of petitioner’s claim at the date of the decree in the Surrogate’s Court, July 20,1926, was $2,225.09. In addition the Bramer property may be retained by the petitioner free from any claim on the part of the personal representatives of Andrew Davis, deceased.
All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.
Decree modified by reducing the amount of the petitioner’s claim as determined to the sum of $2,225.09 as of the date of the entry of the decree, July 20, 1926, and as so modified affirmed, together with the two orders appealed from, without costs of this appeal to either party. New findings of fact made.
