190 A.D. 396 | N.Y. App. Div. | 1920
John P. Conlon died at the city of New York on April 5, 1899. He left a last will and testament dated March 21,1877. Plaintiff, claiming to be the wife under common law of said Conlon, commenced an action on June 23,1899, in the Supreme Court, New York county, to have her dower admeasured in three parcels of property belonging to said Conlon at the time of bis death known as 39 Mott street, 321 West Sixteenth street and 121 Worth street, all in the city of New York. Because of the terms of Conlon’s will, it was to the interest of his heirs at law that the existence of a widow should be proved. No evidence was offered at the trial to controvert plaintiff’s claim that she was Conlon’s widow. On September 5, 1900, a decree was made and entered in such action admeasuring her dower and determining that the gross and net annual rents for said properties were as follows: 39 Mott street, gross $2,702.50, net $1,507.40; 321 West Sixteenth street, gross $1,594.50, net $932.64; 121 Worth street, gross $3,600, net $2,074.40. The gross rent for the three parcels was $7,897; the net $4,514.44. The executor of the last will and testament of John P. Conlon was by said decree' ordered to pay to the plaintiff one-third of the net annual income from said property, amounting to $1,504.81, in equal quarterly amounts of $376.20, starting with the quarter beginning May 17, 1900. Thereafter, by a decree made by the Supreme Court in the action of Winifred F. Jones and others against Mary Ann Kelly and others, brought for a construction of the will and to determine who were Conlon’s legal heirs, it was among other things adjudged that Michael J. Dwyer, as executor and trustee of the last will and testament of John P. Conlon, deceased, had a power in trust to sell the real estate belonging to decedent and that the same should be sold by him, and after payment of the debts of the decedent and the costs of administration, and after making due allowance for the dower of the widow, the remainder should be distributed as therein provided. On motion of plaintiff, on August 21, 1902, by an order made in the action of Conlon v. Kelly, Thomas M. Mulry was appointed receiver of the three parcels of property of which decedent died seized for the purpose of carrying the judgment into effect and paying plaintiff her dower as directed. The receiver did
On January 24, 1908, Buttenwieser obtained an order to show cause why an order should not be made directing the receiver to account for and pay over to him the rents collected from No. 39 Mott street and No. 321 West Sixteenth street since June 19, 1907, and further directing the receiver to refrain from thereafter collecting any rent or interfering with the premises, and discharging the receiver. The petition of Buttenwieser recited that plaintiff had since the entry of judgment in Conlon v. Kelly assigned her dower interest to George B. Morris, her attorney. On March 2, 1908, an order was made granting Buttenwieser’s application, directing the receiver to forthwith pay over to him the sum of $2,257.72, the excess of rents collected over disbursements since June 19, 1907, and ordering the receiver to deliver and surrender possession of the premises to Buttenwieser and to refrain from further collecting the rents thereof, or from otherwise interfering with the possession thereof, and discharging the receiver. Notice of appeal from this order was given by plaintiff on March 25, 1908, but the appeal was not argued in this court until January, 1910, when the order was affirmed (Conlon v. Kelly, 136 App. Div. 940), but upon appeal to the Court of Appeals the order was reversed and plaintiff’s right to her continuing dower upheld on June 7, 1910 (199 N. Y. 43).
Meantime, within less than a month after her status as the widow of Conlon had been established by the decree of the Supreme Court, and on September 24, 1900, plaintiff brought an action (Conlon v. Mission of the Immaculate Virgin) to enforce an alleged agreement with her late husband, whereby in consideration of an agreement to perform certain services for him, and of certain moneys-paid by her to him, he agreed that upon his death-he would, leave her all -the property .of which, he. might be seized and. possessed.. She claimed that_
In June, 1905, certain judgment creditors of plaintiff brought an action to have the transfer of her dower to her then attorney, George B. Morris, declared void. The summons was subscribed by more than one attorney and on motion the summons was set aside, unless plaintiffs all appeared by the same attorney. (Jones v. Conlon, 48 Misc. Rep. 172.) The administratrix of the estate of John P. Conlon also brought an action to set aside the transfer of plaintiff’s dower right to Morris as in fraud of said administratrix’s rights, and in anticipation of her obtaining a judgment for costs against plaintiff. A receiver having been appointed, the order was reversed by
On March 30, 1907, a deed of the premises No. 121 Worth street was recorded in the register’s office of New York county, purporting to be a conveyance from John P. Conlon to Eva K. Conlon. On December 7, 1907, an action was commenced by Winifred F. Harding against plaintiff to have this deed declared a forgery, null and void, and to have it delivered up, canceled and destroyed, and the record thereof canceled. This action came to trial March 20, 1911, and on July 11, 1911, a judgment was entered declaring the deed a forgery and that it be canceled and destroyed. In his opinion Mr. Justice Erlanger (referring to this plaintiff) said: “A history of this legal warfare in chronological order tends in no small degree to shed light upon the different efforts made by her to obtain possession of his estate in whole or in part, and shows her versatility in that particular. When results in the courts did not measure up to her conception of her rights, other means of attack upon the estate were introduced, and she is now before the court, not upon her own initiative, but because she is charged with an attempt of appropriating to herself a valuable piece of property through the means of a deed which plaintiff contends is a forged paper. * * *
“ The conviction is forced upon me that Anderson was a pliant tool for some person who made forgery his business, and when the emergency called for his aid he readily took the acknowledgment to such deeds. But Anderson was otherwise discredited. While in prison on the Appleby charge he admitted to at least two persons that the deed which is the subject of this action was a 1 crooked one.’ True, Anderson before his death denied that he ever made such admission, but nothing in his record justifies the inference that the two witnesses referred to are to be discredited on account of such denial. I am not unmindful of the rule that ‘ courts of justice lend a very unwilling ear to statements of what dead men had said,’ but it was never intended to apply such rule to a case like the one at bar. Anderson’s evidence in respect to the execution of the deed, and its subsequent delivery to the widow by means of the advertisement, can aid her slightly in
“ The widow was not called to testify in her behalf. She offered no explanation why she sought expert evidence shortly after the deed was delivered to her to determine its genuineness. It was left to her counsel to excuse her absence, and he undertook to do so by stating in his brief that the fact that Anderson got into trouble with the authorities was the motive for her act; but this is not justified by the proofs, because Anderson was not arrested until September 5, 1907, and his indictment occurred in October of the same year, while her experts reported the forgery to her in August of that year. The circumstances of the receipt of the deed through the advertisement was left to Mr. Campbell to explain. Her absence deprived the plaintiff of the opportunity of cross-examining her in respect of many details.”
After February 8, 1908, the receiver had refused to make any payments of her dower to plaintiff, because of the pending litigation. This was because as to the Mott and Sixteenth street properties the Lawyers Title Insurance and Trust Company claimed that by the exercise of the power of sale the fee could be transferred free of the dower hen by payment of a lump sum, and it had taken a deposit from the purchaser to cover the same. The receiver, therefore, could get no moneys out of which to pay plaintiff’s dower. He took the position that as to the Worth street property plaintiff’s assertion of entire ownership therein was inconsistent with her dower right, which was merged therein, and, therefore, he would pay her no dower in that property. It was not until March 24, 1910, that the referee finally paid plaintiff her accumulated dower in the Worth street property amounting to $1,467.50, and on June 27, .1910, the Lawyers Title Insurance and Trust Company paid her $2,033.46 for the accumulated dower on the two other parcels of property.
While this litigation was .progressing, a new suit was brought,
In the month of November, 1909, plaintiff’s affairs were in the following condition: She was receiving no dower whatever, as the receiver had refused to pay her any further amounts under the judgment admeasuring her dower, (1) as to the Worth street property because of the pendency of the action to declare her deed to it a forgery and because she was claiming sole title to such property in conflict with her prior claim of dower therein; and (2) as to the Mott and Sixteenth street properties because of the pendency of the Buttenwieser motion to discharge the receiver and end her payments of dower therein, which had been decided adversely to plaintiff, but was then on appeal. The Steinman and Meyers suit had been begun, and she was facing a liability therein of $3,500. She had no real defense to this suit, and a judgment would result in her dower rights being reached and taken by her creditors. She was in pressing need of funds with which to pay the expenses of taking before a referee the testimony of the witness Anderson, then sick in a hospital,' and vital to her in the Worth street litigation. At any time she could have abandoned the fight for the Worth street property and rested content with her dower rights. But she wánted the Worth street property as absolute owner. She had no return from her dower rights. She was in danger of losing everything to her creditors. In view of her previous record of litigation, she ran serious risks if her claim to the Worth street property was found to be fraudulent. Her attorney was urging her to secure the help of rich friends to raise funds to employ counsel to care for her interests in pending litigation. She had no moneys available and earned only eight dollars to ten dollars a week as a masseuse.
At this critical juncture, Marsh, her then attorney, who represented her in the Buttenwieser and Harding litigation and had been her attorney since 1907, according to her testimony, came to her and told her she would need from $300 to $600 to pay the printing bills on appeal to the Appellate Division, and a little more if it went to the Court of Appeals — perhaps a couple of hundred dollars; and that the referee’s fees for taking Anderson’s testimony would vary according to
‘ Mr. Hosier, I have come down to see if you can or will let me have a few hundred dollars. My income has not been coming in, as you know, for about two years. The Sixteenth Street and Mott Street property has been sold and the buyer has brought a motion in the Supreme Court to rid the property of my dower and for the receiver to be discharged, therefore there is no one to get me my dower. Judge Platzek has decided a motion, it has gone against me, and I will have to get papers ready for an appeal, and my attorney has told me that I will need some money to pay the printing.’ I said, ' I also, Mr. Hosier, have engaged — Mrs. Coe.’ Mr. Hosier knew who Mrs. Coe was. ‘ She has got me a counsel that will carry the case, will appeal the case for me. I then would like ’— he asked me how much. I said my attorney told me somewhere between three and four hundred dollars, it was according to how far it would go; if it only went to the Appellate Division I would not need so much, and I did not care to go to strangers; I preferred to deal with people that I knew. I told him I had been to Mrs. Belle Knapp and Mrs. Belle Knapp told me that she was not in a position to let me have any more, as she had already lent me a thousand dollars and I had given my jewelry for security. Mr. Hosier said, ‘ Why, yes, Mrs. Conlon, I am sure, for the sake of the friendship in the family, as much as they have all thought of you, I certainly would be glad to help you.’ He asked how much I would need. I told him I did not know, but I would bring my attorney in and he would explain the matter more fully, that they wished to have me take a lump sum, but I did not care to do that, as that was my life interest to live on, and I wished to retain it.”
By “ they ” she said she referred to Buttenwieser and Conlon’s heirs. Hosier, she says, told her that he would let her have the money she needed, and he would be only too glad to help her, because of the family friendship. The amount of the advances was not specified. That evening she
A couple of days afterwards, she claims to have brought Marsh with her to see Hosier, whereupon Marsh is testified by her to have said: “ Mr. Hosier, the decree was rendered Mrs. Conlon in September, 1909, awarding her an income of $1,500 a year, and as the property has been sold there is no one to pay her dower. Now we are obliged to take an appeal and she will need some few hundred dollars to do so, and she has told me that you are willing to let her have it. She wishes to give you her dower as security and she is willing to pay you six per cent interest.’ Mr. Hosier said, ‘ Yes, Mrs. Conlon has been here and I am perfectly willing.’ Mr. Marsh says, ‘ No matter how it would go, Mr. Hosier, even if this was sustained,’ he says, ‘ she would get a good round lump sum; you are not running any risk, as she has not been getting her income for over two years; there will be about two thousand dollars coming to her.’ He says, ‘ I advise her, too, that she should keep her life interest; ’ and he said, ‘ If she was to take it under the Northampton table ’— Mr. Hosier said, ' What does that mean? ’ Mr. Marsh says, ‘ Well, a widow has the right’—By the Court: Q. He explained it? A. Yes, he explained it to him. By Mr. Steckler: Q. Did he tell him how much in amount the dower was worth under those tables? A. He said it was according to the age; as I grew older I would not get as much; if I had taken that outright at first, why, then I would have got more, and he says, ‘ Mrs. Conlon prefers to keep that; that is what she has to live on for life.’ Q. When he said if this was sustained, what did he mean by that? A. Why, he meant if the motion in the Appellate Division — that if they sustained Judge Platzek upon appeal. Q. You mean in his decision that the receiver should be discharged?' A. Yes. * * * Mr. Hosier said he had a great deal of respect for Mrs. Conlon and her ability to go to work, and he said, ‘ I will be only too glad to help her; anything I can do
“ State of New York, 1 1
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County of New York. J
“ Eva K. Conlon being duly sworn says that she is the widow of John P. Conlon, deceased, and that as such widow she is entitled to dower in the Estate of which the said John P. Conlon died seized. That by a decree of the Supreme Court, State of New York, dated September 5,1900, she was awarded one-third of the net income from said estate as and for her dower therein amounting to $1507.40/100 per year. That since February, 1908, she has not been paid any money for her dower in said estate and that the same has been accumulating since such date. “EVA K. CONLON.
“ Sworn to before me this 22nd day of November, 1909. “ John B. Fasola,
“ Comm, of Deeds,
“ N. Y. City.”
She swears that no notary or commissioner of deeds was present when the assignments were signed by her. The papers,
The papers she signed were in fact two. One was signed by plaintiff dated November 22, 1909, signed in the presence of F. E. Edwards and acknowledged before John B. Fasola, commissioner of deeds, New York city, whereby for a consideration of one dollar and the grant and conveyance of certain property theretofore caused to be conveyed to plaintiff by James H. Marsh, situate in the city of Buffalo and town of Tonawanda, plaintiff granted, conveyed, transferred and set over unto James H. Marsh all her dower, right of dower, property, possession, claim and demand awarded to her by the decree of the. Supreme Court, dated September 5, 1900, and all money due and to grow due thereon or therefrom. The recitals in the assignment described each parcel by metes and bounds, recited the terms of the judgment admeasuring the dower as to the gross and net rentals of each parcel of property and further recited that “ being so entitled to dower in the aforesaid property said party of the first part [plaintiff] agreed with said party , of the second part [Marsh] to exchange said dower and right of dower for certain property in the City of Buffalo and Town of Tonawanda.” Plaintiff denies that she ever knew F. E. Edwards, admits that she knew John B. Fasola, but he was not present when it was signed and she never acknowledged the paper before him. She says she never received a transfer of any property in Buffalo or Tonawanda from Marsh, but admits she did receive deeds to property in Buffalo and Tonawanda from Viola Lowrie and Charles Buchbaum. The record from the clerk of the county of Erie shows a conveyance of lands in Buffalo and Tonawanda from Charles Buchbaum to plaintiff dated July 1, 1908, recorded August 5, 1908, and of lands in Buffalo from Viola Lowrie to plaintiff dated July 18, 1908, recorded August 13, 1908. Plaintiff made conveyances of parts of these lands in 1909 and 1910, five deeds from her appearing on record. Plaintiff
She claims not to have discovered that the transfer of dower to Marsh was recorded until 1913, when she learned it from Mr. Emley, as follows: “ Mr. Emley told me that he wanted to see me in regard to drawing up a paper in regard to the Worth Street property, my dower in the Worth Street property. He said he was afraid Mr. Goebel was going to bring a suit for costs that had been awarded him in Harding against Conlon, and he wanted me to get out of the city because he didn’t want any more trouble with Mr. Hosier, he was a fool, and he didn’t know what he knew or what he didn’t know, and that he wanted me, in case this come up —■ that he could -never go through with Mr. Hosier again in this matter, if Mr. Goebel was to bring a suit in regard to my dower, and there was a whole lot more talk about it. I said, ‘ What’s the matter? ’ He said, ‘ You know Mr. Hosier put your papers on file,’ and he said, ‘ They had them up in supplementary proceedings, Steinman, and I had a great deal of trouble,’ and he said, ‘ Now I wish you to sign a paper, so in case they bring this suit that it will be all right, or if you should die there would be no trouble.’ I said, ‘ I don’t know what you mean, Mr. Emley.’ So then I went out to Mundy and I said, 1 What is the meaning of all this business, Mr. Mundy? You send me away to Canada. Now,’ I said, ' Mr. Emley wants me to sign some papers.’ He said, ‘ Mrs. Conlon, don’t you sign a. paper more, they intend to deprive you of every dollar you have got, and I am going to leave this office on that
But plaintiff admits that the signature affixed to the assignment of her dower to Marsh is her signature. On cross-examination she said she signed that very paper on November 22, 1909, in her apartment, around noon, and that Banker was present during the transaction; Marsh left half an hour to an hour afterwards. She claims she signed two single sheets of paper, and that the three pages now physically attached to the page containing her signature were not attached when she signed. She understood the two papers she signed to be identical duplicates, “ one original and one copy.” In answer to questions by the court she said she knew the signature attached to the assignment was hers, but she could not remember the occasion when she signed it.
By the court: “ Q. Then how can you say that there were not the three sheets preceding the fourth sheet when you signed it? A. They was not in the two papers I signed. I say that is my signature on that paper. Q. What you mean is this, then, I take it, or at least that is what I understand, that this is not the paper which you signed when you signed the two papers assigning your dower to Mr. Hosier? A. That is right. Q. That this must be some other paper? A. This is another paper. Q. So when you say that the first three sheets of this Exhibit 8 were not attached to the fourth sheet when you signed the fourth sheet, you really do not know whether they were or not, because you don’t know when you signed this Exhibit 8? A. No, I don’t know.”
She was then further cross-examined: “ Q. Now, madam, I call your attention to the fact that Plaintiff’s Exhibit 8 purports to be an assignment by you to one James H. Marsh of your dower right in three distinct pieces of property. Did you ever execute any instrument assigning your dower right in these three pieces of property to one James H. Marsh? A. No. Q. At no time? A. At no time. Q. And as you sit there now on the stand under oath, you assert that you never knowingly signed any instrument assigning your dower right to such a person as James H. Marsh? A. I do. Q. Whether it be the father of the defendant in this action or the defend
Exhibit 9, referred to in the question above set forth, is an assignment from James H. Marsh to Edward B. Hosier, in consideration of one dollar and other good and valuable considerations, of “ all dower, right of dower, property, possession, estate, claim and demand, which was conveyed to the party hereto of the first part, by deed of conveyance made by Eva K. Conlon, the party thereto of the first part, dated the 22nd day of November, 1909, and all right, title and interest in and to the property described in said conveyance, and all the rents, profits and sums of money due or to grow due thereon.” It bears date November 22, 1909, and purports to have been acknowledged before John B. Fasola, commissioner of deeds, New York city, on the same date. Both these assignments were recorded in the register’s office, New York county, November 24, 1911.
The plaintiff upon the trial produced a paper which she had also produced upon the former trial. This she said was “ like the one I signed;” “ the size and type was the same as I signed;” she finally said it was like the one she signed because it was on a single sheet. This paper she says she found among Marsh’s effects in her home. It is obviously a carbon copy of the typewritten matter on the first page of the assignment from Marsh to Hosier. When she discovered this paper does not
After November 22, Í909, Hosier made advances on plaintiff’s account for her litigation, beginning with payments on December 7,1909, of $225 for the referee’s fees for taking the testimony of the witness Anderson in Harding v. Conlon and $121.45 for stenographer fees in the same matter. Hosier gave no immediate notice to the receiver of the assignment to him, and so when the receiver finally made a payment on March 24, 1910, on account of the deferred dower (amounting to $1,467.50), it was made directly to plaintiff by the receiver’s check to her order. This he paid after the decision of the Appellate Division in Conlon v. Kelly (137 App. Div. 277) that her claim to own the Worth street property did not affect her dower. Plaintiff turned this check over to her friend Mrs. Coe who disbursed it under plaintiff’s orders, and plaintiff gave only $400 of the amount to Hosier. Hosier made some other advances for plaintiff as required, and finally on June 27, 1910, the Lawyers Title Insurance and Trust Company after the reversal by the Court of Appeals of the order in the Buttenwieser motion, paid $2,033.46 for the accumulated installments of dower and a check for $590.63 costs. These plaintiff turned over to Hosier, and on the same day she received a paper from him. This she claims was a statement of account by Hosier to her showing a balance to her credit of $854.14. The paper is headed:
“ Statement
“ To Rafferty & Hosier, Dr.,
“ Wholesale Grocers “ 67 & 69 Front Street.
“ E. K. Conlon New York, June 27, 1910.”
Then follow the debit and credit items.
“ I asked him for it [the statement], went down to his office. * * * Q. That was the same time you got the $750 check for Mr. Swift, and other checks you have just mentioned? A. Yes, I went down and got my $300 in his office. * * * Mr. Hosier gave me this and said, ‘ Mrs. Conlon, you have to your credit $845 and some cents.’ He said, ‘ I am very glad that this motion has been decided in your*414 favor, because I would not be able to let you have — to lend you any more money. I am in a little financial difficulties myself, the business is not paying, and I have been thinking very seriously for months of going out of business; one of my clerks has collected $500 and got away with it,’ and he said, ' My wife has been sending in bills, she has been running bills very strongly,’ and he said his wife’s creditors were sending these bills down to his office, and it was annoying him very much, and he said to me, ‘ Would you leave that here and I would keep very careful account of it, just leave that amount here, so I can leave it in my bank.’ Q. What did you say? A. ‘ Yes, Mr. Hosier, I will be only too glad to return the favor; you were very kind to me, and you are quite welcome, and I will have my Worth Street checks come directly to you; the others I will have sent to Mr. Conklin, of the 16th and Worth [Mott] Streets, and if there, is enough there to pay any costs which I will have, I won’t have to come to you, and this will remain here.”
This is the basis of plaintiff’s contention that on June 27, 1910, she had paid back all advances made for her by Hosier, had a balance to her credit and that thereafter he acted as a sort of banker for her. Later (in 1912) she received another statement from Hosier, which bears no heading of his firm, contains no credit items, and shows disbursements made for her amounting to $4,364.63. It purports to show payments made by him for plaintiff’s benefit from February 17, 1910, to September 7, 1911. Thereafter, he made other payments from October 19, 1911, to November 17, 1913, all in connection with expenses of litigation in which plaintiff was involved, save two payments of $20 to plaintiff personally; these payments were exclusive of the purchase by him of the Steinman and Meyers judgment against plaintiff for which he paid $3,000 in cash.
Plaintiff brought this action and in her complaint alleged that prior to November 22, 1909, she was a party to litigation to establish her right to dower in No. 39 Mott street and property on West Sixteenth street, and also her title to No. 121 Worth street; that defendant James H. Marsh was her attorney in such litigation; that she was in need of funds to pay referee’s fees and to protect her interests in thó litigation
“ Fifth. That on or about the 22d day of November, 1909, James H. Marsh, one of the defendants herein, who was attorney for plaintiff herein in the aforementioned litigation, visited plaintiff at her residence No. 602 West 135th Street, and then and there had plaintiff sign instruments in writing which said James H. Marsh advised plaintiff herein were for security and collateral for the loans which said Edward B. Hosier was to make to plaintiff herein to defray the referee’s fees and legal expenses in the aforementioned litigation.
“ Sixth. That thereafter, and on or about the 23d day of November, 1909, plaintiff herein delivered to said Edward B. Hosier, one of the defendants herein, at his office No. 69 Front Street, in the Borough of Manhattan, City of New York, the said instruments signed by plaintiff on said 22d day of November, 1909.
“ Seventh. That said defendant James H. Marsh stated and represented to plaintiff on said 22d day of November, 1909, that the said instruments so signed by her were to be merely security and collateral for any moneys advanced by said Edward B. Hosier to plaintiff herein, and said Hosier agreed to so hold the same.
“ Eighth. That the plaintiff herein relied upon said representations, and was thereby induced to sign said instruments.
“ Ninth. That said representations were false and were known by said James H. Marsh and said Edward B. Hosier to be false and were made with the intent to defraud and deceive this plaintiff, in that said instruments signed by plaintiff as aforesaid, were assignments of her dower right in and to premises known as No. 39 Mott Street, and the premises on the north side of 16th Street between Eighth and Ninth Avenues, and No. 121 Worth Street, in the Borough of Manhattan, City of New York.”
It is then set forth that thereafter Hosier advanced to plaintiff certain moneys necessary to carry on her litigation; that her right to dower was judicially re-established; that Hosier received between March 31 and June 27,1910, the sum of 13,196.94, dower which had accumulated; that on June
“ Fourteenth. That on or about the 23d day of November, 1909, said Edward B. Hosier represented to plaintiff herein that the instruments delivered to him by plaintiff were merely security and collateral to protect said Hosier in case of plaintiff’s death; and that said Edward B. Hosier told plaintiff herein that said instruments would be placed in his safe and would never be placed on record. That plaintiff herein relied upon such representations made by said Edward B. Hosier, on said 23d day of November, 1909, and was thereby induced to deliver to said Hosier the instruments signed by plaintiff on said 22d day of November, 1909.
“Fifteenth. That said representations were false and were known to defendant Edward B. Hosier, when made, to be false, and were made with the intent to deceive and defraud this plaintiff, in that said Edward B. Hosier knew that said instruments were absolute assignments of plaintiff’s dower interest.
“ Sixteenth. Upon information and belief, the instruments so assigned by plaintiff to said Edward B. Hosier, were recorded in the office of the Clerk of the County of New York on the 24th day of November, 1911, without plaintiff’s knowledge or consent.”
By reason of the premises, plaintiff is alleged to have been cheated and defrauded out of large sums of money, Hosier having received $800 annually since June, 1910, and disposing of the same to various attorneys for alleged professional services and otherwise.
The relief demanded is (1) an injunction pendente lite restraining the Lawyers Title Insurance and Trust Company from paying further sums to Hosier and restraining Hosier from receiving same; (2) that Hosier be directed to make a reassignment of the dower rights to plaintiff; (3) that an accounting be had by Hosier and that he pay over any balance found due to plaintiff, she being ready and willing and offering
“ Sixteenth. Alleges that in or about the month of November, 1909, the plaintiff, Eva K. Conlon, was a party to litigations which were to be carried on to establish the plaintiff’s dower right in premises known as No. 139 [sic] Mott Street and premises on the north side of West 16th Street between Eighth and Ninth Avenues, in the Borough of Manhattan, City of New York, and also a certain litigation, the purpose of which was to establish plaintiff’s title in fee to the premises known as No. 121 Worth Street, in the Borough of Manhattan, City of New York.
" Seventeenth. That plaintiff represented to the defendant Edward B. Hosier that she was out of funds to carry on said litigations and that she was particularly desirous of establishing her ownership in fee to the premises No. 121 Worth Street, and requested defendant to advance the necessary funds to carry on said litigations; that thereupon the defendant Hosier agreed to advance the funds necessary for that purpose from time to time without any promise on the part of the plaintiff to repay same, and in consideration of such advances so to be made the plaintiff agreed to and did convey her dower right of said premises to the defendant Hosier absolutely, and that said defendant is now the owner of said dower rights absolutely in his own right and has since said conveyance paid all sums necessary to carry on said litigations, and that the litigation to establish plaintiff’s ownership in fee of the premises No. 121 Worth Street, in the Borough of Manhattan, City of New York, is not ended but is still pending, and that defendant is still paying sums necessary to carry on such litigation, and in connection with said litigation of plaintiff is necessarily expending sums of money in excess of the amounts received by him from plaintiff’s dower interest so conveyed to him.”
The defendant Marsh denies most of the allegations of the complaint, including all charges of misrepresentation, and denies any agreement for the return to plaintiff of her dower. He
The plaintiff’s case, in so far as the original transaction with Hosier and Marsh is concerned, rests upon her own testimony, with such support as is to be found in alleged contradictory statements as to the nature of the title made at various times by defendants' Hosier and Marsh, sometimes under oath; deductions drawn from some of the documentary evidence; the testimony of Banker claimed to have been present at the time of plaintiff’s execution of the assignment; the testimony of Mundy and Mclnerny as to admissions made in and about Emley’s office by various of the persons involved as to the ownership of the dower, the nature of Hosier’s title thereto, and the general fraudulent practices claimed to have been pursued to defeat the collection of the Steinman and Meyers judgment; the testimony of Mrs. Knapp, Little and Purdy as to the check for $560, claimed to have been given by plaintiff to Mrs. Knapp to repay half of the loan (with interest) claimed to have been made by Mrs. Knapp to plaintiff to enable her to get her jewelry out of pawn, which plaintiff asserted she pawned to raise $1,000 of the amount she put into the Buffalo deal, and the testimony of Newmark, an attorney, in reference to certain details of the affairs of Mr. Mulry, as receiver, including a demand made by Marsh January 2, 1912, a notification from plaintiff on November 24, 1911, that she had assigned her dower to Hosier and had no further interest therein and a letter dated November 22, 1911, from Emley that Hosier demanded payment of the past due dower.
In rebuttal plaintiff also offered the following testimony: William Fieselman called to testify as to Fasola’s leaving the building where he had his office and Marsh’s ignorance of his whereabouts; Leviness, a man seventy-seven years old, as to Marsh’s calling with plaintiff in November, 1909, at Hosier’s office; William R. Conklin, an attorney, as to an affidavit by Marsh; Marsh, as to this affidavit; Ralph H. Cohen, as to the details of the various trades culminating in the Buffalo real estate transaction, and that he never knew or heard of Marsh’s father in the transaction, and that defendant Marsh was the real person interested therein, wherein Lowrie and Buchbaum were “ dummies ” for Radford and Cohen respectively, and
Plaintiff’s version of what took place at the first interview with Hosier is contradicted and is uncorroborated. Concededly, plaintiff is unworthy of belief. Her counsel, on the argument as in their brief, does not ask that she be believed on any point on which she is without corroboration. This condition is due to her own record of attempts to accomplish what the courts have heretofore held were frauds upon Cordon’s estate, sought to be sustained by perjury and forgery. Nor does the record in this case show that her past experiences have made her any more solicitous about telling the truth under oath. The learned court at Special Term in his second opinion said: “ And it may be pertinent to add that on this feature of the case, as upon every other, I have refused to accept Mrs. Cordon’s uncorroborated testimony upon any controverted fact. She has shown herself to be neither a careful nor a scrupulous witness.” Upon this trial the only corroboration of her story as to what occurred when the assignment was signed by her was that of the witness Banker, who was conclusively demonstrated to be absolutely unworthy of belief.
As against plaintiff's belated attempt to assert that her assignment of her dower to Hosier was as security only, and not absolute, we have repeated declarations of hers to the contrary. It is to be remembered that she now claims that she signed two papers, of one sheet each, an original and a duplicate (or copy), which she says (and produced the discredited witness Banker to corroborate her) were an assignment direct to Hosier as security or collateral for moneys to be advanced by him to carry on her litigation. She claims that she knew nothing of any transfer to Marsh by her, or by Marsh to Hosier; that Hosier agreed that he would put the papers she gave him in his safe and never record them, and that they were recorded on November 24, 1911, without her knowledge. She admits the signature to the assignment to Marsh is in her handwriting, but explains it by saying she signed papers from him in blank having to do with the Buffalo property; but repudiates
“ Gentlemen.— I beg to inform you that on the 22d day of November, 1909, L assigned my dower interest in the premises known as Mott and 16th Street to James H. Marsh, and I am informed that Mr. Marsh thereafter assigned the same to Edward B. Hosier of No. 397 Greenwich Street to whom all payments thereon have since been made. I have no interest in said dower and the same as it accrues should be paid to Mr. Hosier or his assigns. Yours very truly,
“ EVA K. CONLON.”
(2) Her letter to Thomas M. Mulry, receiver, also bearing date November 24,1911, as follows:
“ Dear Sir.— I beg to inform you that on the 22d day of November, 1909,1 assigned my dower interest in the premises known as No. 121 Worth Street, Borough of Manhattan, New York City, to James H. Marsh, and I am informed that Mr. Marsh has since assigned the same to Edward B. Hosier of No. 397 Greenwich Street, to whom all payments thereon have since been made. I have no interest in said dower and the same as it accrues shall be paid to Mr. Hosier or his assigns.
“ Very truly,
“ EVA K. CONLON.”
(3) Her affidavit dated July 26, 1911, in the action of Harding v. Conlon, on the application to procure a stay of execution of the judgment pending an appeal to this court, wherein she swears: “ That deponent is without means and is unable to furnish a bond to secure the payment of the costs which were awarded against deponent in this action, and that unless a stay is obtained an appeal will be rendered of no avail by reason of the fact that defendant’s evidence of title will be destroyed under the judgment and order of this Court, if put into effect before the hearing and determination of the said appeal.”
She also swears therein that “ said assignments have been duly recorded as deponent is informed and believes in the office of the Register of the County of New York ” and that “ for more than a year past the said Thomas M. Mulry has made all payments on account of the said dower interest of deponent in said property direct to Edward B. Hosier and that said Thomas M. Mulry has known for a long time of said Hosier’s interest in the said dower and that deponent’s rights thereto had been transferred to said Hosier.” She attaches a copy of her notice to Mulry.
(5) Her answer, verified July 25, 1912, in the action of Steinman and Meyers v. Conlon wherein she averred “ that she has duly assigned for a valuable consideration all her right of dower in certain premises in the city of New York to the defendant Edward B. Hosier,” and also avers “ that the assignments of dower to the defendant Hosier were duly executed on November 22,1909, and were duly recorded on the 24th day of November, 1911.” She denied any fraudulent purpose in making the assignments.
(6) With full knowledge of all the facts she signed the following letter and demand, prepared by her attorney when this suit was about to be brought. Mr. Towns did in fact
“ Law Offices of “ Mirabeati L. Towns “ Woolworth Building “ 233 Broadway, New York
“ Telephone 7184 Barclay Cable Address ‘ Mira Town ’
“ January 14th, 1914.
“ Edward B. Hosier, Esq.,
“ G/o Clark, Chapin and Bushnell,
“ 397 Greenwich Street,
“ New York City:
“ Dear Sir.— I hereby demand of you the immediate return to me of a certain assignment, dated November 22, 1909, of my dower interest in the real estate left by John P. Conlon, deceased, located in the City of New York.
“ This assignment was made by me to one James Marsh and at my direction assigned by said Marsh to you as security for a loan advanced by you to me, and to cover any advances that you might make to me from time to time, at my request.
“ I understand that you placed this assignment on record some two years afterwards. In ease you have placed this paper on record, I demand that you deliver to me a satisfaction and cancellation of the same, duly acknowledged and executed.
“ Should any proper and legal disbursements made at my request and in my behalf exceed the amounts you have received from time to time of the dower coming to me, since the time of said assignment, I hereby inform you that I am ready and willing to pay and discharge the same on delivery to me of such assignment of dower, or the cancellation and satisfaction of the same should it have been placed on record.
“ Yours respectfully,
“ EVA K. CONLON.”
The defendant Hosier testified as to what occurred on plaintiff’s first visit to him at his office. She had previously, for
“ Q. What did you say to her in response to this request of hers? A. I told her I was not in the habit of doing things of the kind; I would give it some consideration. Asked her when she wanted to know. She said she would have to know very promptly. Q. You said something about consideration, that you would give it some consideration? A. I would give it some consideration. She said that she had — she had come to me as a last resort, that she had been endeavoring to raise funds unsuccessfully and it had got to a point where she would have to know right away.”
A couple of days later she returned, again alone. “ Q. What took place on the second visit? A. She said that she hoped that I was going to take the dower, and I asked her if I was to understand she was going to make a full assignment of the dower to me, that I would have all the rights to it. She said, 1 That is exactly what I intend to do.’ I said, ‘ Under those conditions, then, I will agree to it.’ She said, ‘ Very well, I thank you, very much obliged to you, and so forth, and I will have the assignment of the dower made out.’ Q. Now, did she on that occasion say anything relative to * * * whether you had a lawyer or not? A. Yes. Q. What did you say to her? A. I told her I had not. Q. What did she say? A. Then she said, ‘ I will have my lawyer make them up.’ ”
The third visit made by plaintiff at Hosier’s office was on November 22, 1909, about midday. What took place is thus narrated by him: “ Q. Now, when Mrs. Conlon came- on this occasion, about November 22d, did the gentleman that was with her accompany her into your private office? A. He did not. Q. As you came up one flight of stairs in your building, you entered into a large room in which partitioned. off was your private office? A. Exactly. Q. Now, then, did Mrs. Conlon come into your private office on that occasion? A. Came directly into my private office. Q. Did any gentleman come with her? A. He did not. Q. And when she came into your private office, just recall as nearly as you
The three papers in question were (1) the assignment of dower, plaintiff to Marsh; (2) the assignment of dower, Marsh to Hosier; (3) plaintiff’s affidavit of title. Hosier delivered them in November, 1911, to Emley, when the assignments were recorded. After the transaction in Hosier’s office was concluded, plaintiff said to him: “ ‘ I have a lawyer out here, if you would like to see him.’ And I said, ‘ I don’t know that I have any special inquiries to make; you say this is the complete assignment of the dower,’ and on the way out she introduced me to Mr. Marsh. Q. How did she introduce you? A. Her lawyer. Q. Her lawyer? A. Yes. * * * Q. After the introduction, what else was said, if you remember? A. I believe I asked him if I understood this was a full assignment of Mrs. Conlon’s dower to me. He said, ‘ That is a full assignment.’ And he said, ‘ There will probably be some bills due shortly. There was nothing due then.’ I asked him if there was any money required at that time. He said there was none then, but shortly there probably would be some requests for payments, bills that had been contracted for.”
He says that plaintiff told him that as proceedings had been started to resume the payment of dower, it was thought best to let the dower come along in her name as otherwise it would upset the proceedings, and, therefore, she would rather have
Defendant Marsh testified that he was first retained by plaintiff in November or December, 1907, in connection with the forged deed to No. 121 Worth Street involved in the suit of Harding v. Conlon. He testifies: <£ Prior to the execution of these papers; in fact, during the time that I was acting as Mrs. Conlon’s attorney, I had urged upon her from time to time the necessity of getting funds for her defence in this litigation of Harding against Conlon, and it finally came to a point where I told her that she would have to get funds to take care of the expenses of the litigation and to prepare for the future, that she would have to have expert trial counsel and that there was then due or incurred expenses for a reference and taking the testimony of one Anderson who was to be a witness in the case of Harding against Conlon. Q. Up to this time had you ever seen Mr. Hosier, the defendant in this case? A. No, sir, never saw him. Q. Had Mrs. Conlon, so far as you can recall, mentioned his name to you up to that time? A. No, sir. Q. Now what is the next occasion that you recall any conversation with Mrs. Conlon relative to that matter? A. Shortly after that, I couldn’t say how long, at her apartment I had a conversation with her. * * * Q. Now state what it was. A. Mrs. Conlon came to me and said £ I have made arrangements to obtain money. I have agreed to sell my dower to Mr. Hosier, and he has agreed to pay any ■ and all disbursements which may be necessary to carry on my defense in the Worth Street litigation to a finish,’ was the way she expressed it. I said, £ Well, what do you mean when you say you have agreed to sell your dower to Mr. Hosier?’ And she said, ‘ I have agreed to turn over to Mr. Hosier all my dower rights in three pieces of property.’ I said, £ You can’t do that without my father’s consent. You told me that you had agreed to give my father the dower in consideration of the Buffalo lots which had been deeded to you, and you are in no
He swears the papers he prepared are those now in evidence; that he never prepared an assignment direct from plaintiff to Hosier either as security, collateral or otherwise. He never told plaintiff that the papers as drawn were only a security or collateral for advances to be made. He swears that his father in January, 1912, was seventy-three to seventy-four years of age and in a highly nervous condition, suffering from cerebral hemorrhage from which he died the following October. At the request of his father he sent the following letter:
“ January 2, 1912.
“ Mr. Thomas M. Mtjlry,
“ Receiver of premises 121 Worth St.,
“ 51 Chambers St., N. Y. City:
“ Dear Sir.— Please take notice that by virtue of an assignment duly made and executed by Mrs. Eva K. Conlon, I am the owner of the dower and right of dower in premises No. 121 Worth St. of which John P. Conlon, her husband, died seized.
“ All future payments of said dower you will please make to me. Respectfully yours,
“ JAMES H. MARSH,
“ 120 Liberty St., Room 810, N. Y. City.”
*429 “ January 2, 1912.
“ Lawyers Title Insurance & Trust Co.,
“ Broadway, New York City:
“Gentlemen.— You will please take notice that by virtue of an assignment duly made and executed by Mrs. Eva K. Conlon, I am the owner of the dower and right of dower to which said Eva K. Conlon became entitled upon the death of her husband, John P. Conlon, in certain premises situated in the City of New York, and known by the following street numbers namely,
“ 121 Worth St.
" 39 Mott St. and
“ 323 W. 16th St.
“ Under a decree of the Supreme Court, the owner of the 16th St. and Mott St. premises, is, through your company, paying the dower to Mrs. Conlon. All future payments will be payable to me and not to Mrs. Conlon, by virtue of the above assignment.
“ Respectfully yours,
“ JAMES H. MARSH,
“ 120 Liberty St., Room 810.”
“ New York, January 24, 1912.
" Lawyers Title Insurance & Trust Co.,
‘ 160 Broadway, New York City:
“ Gentlemen.— Replying to your favor of the 22d instant, relating to the dower of Mrs.' Eva K. Conlon, would say that neither Mrs. Conlon nor Mr. Hosier, to whom you refer, has any interest whatever in the dower in the premises known as the Mott Street and 16th Street properties.
“ The assignment made to Mr. Hosier and recorded on November 24th, 1911, in L. 137, Sec. 1 of conveyances, page 163, was given to him merely to cover certain advances. These advances have now been fully paid and Mr. Hosier’s interest in the dower has ceased.
“ Within a short time I will have the record straightened out or will institute an action, so that the rights of all parties concerned will be determined.
“ Respectfully yours,
“ JAMES H. MARSH.”
Mrs. Helen M. Marsh, mother of the defendant James H. Marsh, testified that her husband, James H. Marsh, died in October, 1912. She identified her husband’s signature on his account with her in the Broadway Trust Company. She says her husband’s handwriting changed a great deal before he died; that her son’s and husband’s handwriting were very much alike, but the signature to the assignment from Marsh to Hosier looked very like her husband’s writing.
George D. MacKay was called to give testimony which demonstrated the unreliability of Banker as a witness.
Louis S. Quimby, formerly paying teller of the Broadway Trust Company (at the time of' the trial its vice-president), familiar with the signature of Marsh, Sr., swore that in his opinion the assignment, Marsh to Hosier, was signed by him. The signature on opening the account and various checks, all signed by Marsh, Sr., were all present for comparison and opinion.
J. Clifford McChristie was called to identify certain checks.
George W. Berry, receiving teller of the Broadway Trust Company, familiar with the signature of James H. Marsh, Sr., testified that the signature to the assignment, Marsh to Hosier, was that of Marsh, Sr.
David Steckler, plaintiff’s attorney, called as a witness by defendant, conceded that in the action of Steinman and Meyers against Conlon he had charged that the assignment
Jay Noble Emley, an attorney, also gave testimony which it is not deemed advisable now to discuss.
In the foregoing statement of facts, reference to the disgraceful record in the long course of Steinman and Meyers litigation with plaintiff has not been detailed as in our view it is not necessary to the decision of the case.
The learned court first handed down an opinion, in which he said that “ the voluminous testimony and exhibits disclose a farrago of chicane, fraud and perjury, involving not alone the acts of Mrs. Conlon and the defendant Hosier, but as well the professional conduct of three members of the Bar.” He dismissed the complaint as to the defendant James H. Marsh on the ground that he was neither a proper nor a necessary party. He found: “ (1) The assignment of dower (Exhibit 8) from Eva K. Conlon, plaintiff, to James H. Marsh, dated November 22, 1909, and as well the assignment of dower (Exhibit 9) from James H. Marsh to defendant Edward B. Hosier, were severally executed by the plaintiff as her free acts and deeds. Each, as it imports upon its face, was absolute in form and was so known and intended by plaintiff to be at the time of its execution and also at the time of its delivery to defendant Hosier, and neither of the assignments was either in form or substance or in fact executed or delivered because of any misrepresentation whatsoever by James H. Marsh. (2) The James H. Marsh named in each of the assignments was this defendant James H. Marsh and not his father, who bore the same name. (3) The assignment from plaintiff to Marsh was without any consideration whatsoever and was made in pursuance of an understanding between plaintiff and Marsh that he would forthwith assign the dower to Hosier. (4) On or about November 23, 1909, both of said assignments were by the plaintiff delivered to the defendant Hosier as collateral security for certain loans thereafter to be made by him to the plaintiff. Thereafter Hosier loaned plaintiff certain moneys on the faith and security of the several assignments. (5) At various times in the year 1911 and thereafter, but prior to the commencement of this action,
Thereafter the court filed a third opinion. In his decision he made the following findings:
“III. On November 22,1909, there was due and owing to the plaintiff and unpaid under said decree the sum of about $3,000 as dower, and on or about said date the plaintiff entered into an agreement with the defendant Hosier, wherein he agreed to loan and advance to the plaintiff divers sums of money as she might require in the prosecution of certain legal proceedings which were then pending in this court in the said action of Conlon against Kelly and in a certain other action then pending in this court wherein Winifred Harding and others were plaintiffs, and the. plaintiff herein was defendant, and the plaintiff herein agreed to secure the payment of said advances by an assignment of said dower unto said defendant Hosier.
“ IV. The plaintiff thereupon instructed the defendant Marsh, who is an attorney of this court and at said time was*434 plaintiff’s attorney in said actions, to prepare the necessary papers to effect such transfer. Thereafter on the 22d day of November, 1909, the plaintiff, intending to make a conditional assignment of her dower to Hosier as security for advances to be made by Hosier as hereinbefore mentioned, signed an instrument prepared by Marsh and which Marsh represented to be, and which the plaintiff in reliance upon Marsh believed to be, designed to effect such an assignment. At or about the same time, the plaintiff also signed a paper in the form of an affidavit, in which she stated the amount then due her on account of said dower. Marsh retained the said assignment and form of affidavit in his possession, and thereafter and on or about the 25th day of November, 1909, accompanied the plaintiff to the office of Hosier and thereupon gave to the plaintiff for delivery to Hosier, and the plaintiff delivered to Hosier, an envelope containing instruments, which plaintiff in reliance upon the representations of Marsh believed to be the instrument or to include the instrument signed by her as hereinbefore stated, and which the plaintiff likewise believed to be designed to effect a conditional assignment to Hosier to secure advances to be made by Hosier as hereinbefore mentioned. The instruments in fact contained in said envelope and delivered to Hosier were (a) an absolute assignment in writing of plaintiff’s dower by the plaintiff to the defendant Marsh bearing date November 22, 1909, for the alleged and pretended consideration of the conveyance to the plaintiff on July 1, 1908, of certain lands in Erie county, (b) an absolute assignment executed by Marsh and dated November 22, 1909, assigning said dower to Hosier for the pretended consideration of one dollar and other valuable considerations, and (c) the form of affidavit signed by the plaintiff and hereinabove mentioned. The said two absolute assignments were prepared by Marsh. Marsh caused one Fasola, a commissioner of deeds, to attach his signature to a jurat affixed to the said form of affidavit, and also to an acknowledgment attached to the said assignment from the plaintiff to him, but the plaintiff never made oath to said affidavit before said Fasola, nor did she appear before him and acknowledge said assignment. The plaintiff was ignorant of the contents of the said envelope excepting the said form of*435 affidavit, and was ignorant of the existence of the said two assignments. Her signature to the first of the said two assignments and her delivery of both assignments to Hosier were fraudulently procured by Marsh.
“V. No consideration of any kind existed or passed from the defendant Marsh to the plaintiff for the said assignment by the plaintiff to the defendant Marsh, and no consideration of any kind existed or passed from the defendant Hosier to the defendant Marsh for the assignment by the defendant Marsh to the defendant Hosier.
“ VI. Neither the plaintiff in thus assigning her dower, nor the defendant Hosier in accepting said assignments, intended thereby to hinder, delay or defraud creditors or prospective creditors of the plaintiff.
“ VII. That the defendant Edward B. Hosier did not at the time or prior to the time of the delivery of said written instrument of assignment of plaintiff’s dower rights to him, as set forth in the plaintiff’s complaint herein, induce the plaintiff to either sign, execute or deliver said instrument to him by any false or fraudulent representations whatsoever.
“ VIII. That the defendant Edward B. Hosier did not at the time or prior to the time of the delivery to him of said written instrument of assignment executed by the said James H. Marsh, induce the plaintiff to either cause to be signed or executed or to be delivered to him said written instrument of assignment by any false or fraudulent representations whatsoever.”
The court, it will be seen, found defendant Marsh guilty of fraud in the procuring of the assignments from plaintiff who had misrepresented them, though in his original opinion he had said that plaintiff knew the paper executed by her was absolute in form and was so intended, and that “ neither of the assignments was either in form or substance or in fact executed or delivered because of any misrepresentation whatsoever by James H. Marsh.”
Many of the findings are taken up with the alleged fraudulent acts of Jay Noble Emley, attorney for both plaintiff and Hosier (who was his brother-in-law). He was first consulted professionally by plaintiff in May, 1911, and was retained by her in writing on June 9, 1911, to defend her in the suit of
I am of the opinion, upon this record, that the agreement between plaintiff and Hosier was that Hosier agreed to advance plaintiff the funds necessary to carry on the litigation affecting
Plaintiff now claims that the transfer to Hosier was valid in its inception and made without intent to defraud creditors; that it was collateral only, but that she subsequently used it for the purpose of evading her pursuing creditors by urging that the transfer was in fact absolute, as its form indicated, and that Hosier, then kindly disposed towards her, assisted her in so misrepresenting the nature and purpose of the transfer, these misrepresentations being made in the supplementary proceedings in Steinman and Meyers against Conlon. She admits that at the time she sought help from Hosier her position was as follows: She had received no dower since February, 1908, and could not prosecute her appeal from the order on the Buttenwieser motion ending her right to dower; she had no money to print the papers on appeal and was in default thereon, whereupon an order was made dismissing her appeal, but on application to this court leave was granted her to prosecute the appeals. Anderson, the witness who was claimed to have taken the acknowledgment of Conlon to the (forged) deed involved in Hording v. Conlon, was in a hospital and about to die; plaintiff needed funds to take his testimony, which was vital to her defense; Marsh had told her she should get counsel to protect her interests; she was earning $10 to $12 a week only. It is her contention that after applying to a friend, she was sent to Hosier’s wife, then to Hosier, and that he agreed to make the advances necessary to print the case on appeal from the order on Buttenwieser’s motion and to pay the costs for taking Anderson’s deposition, and such other disbursements as she might need, and that as security or collateral for such advances Hosier received the assignments in question. She claims that Hosier was paid back in full by June 27, 1910, and thereafter he acted by agreement as a sort of banker for her, receiving and cashing her dower checks and making disbursements therefrom as she required from time to time. She admits that when the assignments were made she was liable on the Steinman and
Defendant Hosier’s contention is that at the time she called upon him she was in a desperate situation. He puts it as follows: Mrs. Conlon was in a desperate situation. She was without any income whatever except her personal earnings of from ten dollars to twelve dollars per week. The action to declare the deed to the Worth street property a forgery was pending. The Steinman and Meyers action against her had just been commenced. Her attorney was urging her to raise funds and employ new counsel in connection with the pending litigations. She had no real defense to the Steinman and Meyers action and a judgment against her therein would result in her dower rights being reached and taken by her- creditors. On the other hand, she must have available funds to fight the Worth street litigation through the Court of Appeals, if necessary. If she were beaten in that suit, she would lose the Worth street property. The only valuable available thing she had on which to secure funds sufficient to fight the Worth street litigation was her dower right. If the Steinman and Meyers action against her were prosecuted to judgment her dower rights were in jeopardy and her ability to secure funds to fight the Worth street litigation would be destroyed. She, therefore, stood to lose both her dower rights and the Worth street property. Her greatest present need was sufficient funds to enable her to protect her interests in the pending litigation. Hence, it is contended, plaintiff decided to cast her dower rights into the scale of chance in such a way that her creditors could not reach them and at the same time assure herself of a source of supply which would meet every necessary disbursement in her fight to retain title to the Worth street property. Hence, also, her agreement with Hosier and the absolute transfer of the dower right to him, she taking care not to advise him of the action then pending against her brought by Steinman and Meyers.
The Worth street property, to which plaintiff was asserting absolute title under the deed attacked in Harding v. Conlon, was valuable. It was taken in condemnation proceedings at the price of $68,000. The mortgage upon it was $25,000, leaving an equity of $43,000. The gross income from this property was $3,600; the net $2,074. There is nothing improbable in the theory that plaintiff risked her dower right of $1,504.81 annually, knowing it was in danger in part from the order in the Buttenwieser motion and in whole from the Steinman and Meyers valid claim, in order to stake all on the chance of getting title to the Worth street property and thus give her an equity of a comparatively large amount, convertible into ready cash. For one struggling along on $10 to $12 a week a considerable amount in ready money was a great inducement even to such a speculation, whereby she risked a certainty of an annual payment (only certain at its full amount, however, if the order in the Buttenwieser motion was reversed) for a large present payment. She knew, as well,
Claim to ownership of the dower rights was made in writing on January 2, 1912, by Marsh, Sr., to the Lawyers Title Insurance and Trust Company, to whom the statement was later made (January 24,1912), in writing by Marsh, Sr., that neither plaintiff nor Hosier had any interest whatever in the dower rights, as the transfer to Hosier was given merely to secure certain advances which had been fully paid and Hosier’s interest in the dower had ceased. These letters were not sent with any knowledge on the part of Hosier; they were not then communicated to him; he had no knowledge of such a claim being made. Whatever the motive which prompted the making of the demand, or the statements contained in the letters, is a matter to be explained by Marsh, Sr., and his attorney, not by Hosier. Singular as the story may at first seem about the property .at Buffalo and Tonawanda, and lacking as it is in many details because of the death of Marsh, Sr., I am convinced upon this record that Marsh, Sr., did in fact execute the reassignment of the plaintiff’s dower rights to Hosier; that he was interested in the property at Buffalo and Tonawanda transferred to plaintiff; that it was so transferred to her at his direction by the “ dummies ” employed in the real estate operations; that he had dealings with plaintiff; and that when the transfer of her dower to Hosier was first broached to defendant Marsh he insisted that some settlement be made with his father, who claimed to have an oral agreement with plaintiff for the transfer to him of those same rights; and that some arrangement between plaintiff and Marsh, Sr., was in fact made, is evidenced by his receiving the assignment and executing the reassignment. The testimony of disinterested witnesses as to the signature of Marsh, Sr., appearing on the reassignment must be accepted as conclusive on that point. What the value was of the con
It may be noted that the commissioner before whom the acknowledgment of both assignments purports to have been taken, John B. Fasola, has left the city and his whereabouts could not be ascertained. The subscribing witness to the transfer from plaintiff to Marsh (Miss Edwards) was located in the State of Washington, but application for leave to go to Special Term and move for a commission to take her deposition made by defendant Hosier upon the trial was denied by the court.
Plaintiff clearly failed to make out her cause of action as alleged. Her denial that she ever knowingly signed the assignment to Marsh, and that what she did in fact sign was a transfer to Hosier as security only, is without credible evidence to support it. She has proved no fraud, deceit or misrepresentation upon the part of defendants. As against clear and convincing evidence, supported by documentary proof and with many written declarations by her to a like effect, that the transfer to Hosier was intended by her to. be absolute, she can offer only suspicion, surmise and speculation. There is no proof of any fraud upon her in the execution of the assignments. She got what she wanted, financial help for her litigation in a desperate crisis of her affairs, and the price she paid for it was what she herself offered to pay.
It will be evident that having reached the conclusion that the plaintiff’s transfer to Hosier was absolute, there could be no way in which the alleged fraudulent acts of Emley or any one else could have operated to change its character into one simply given as security or collateral. But if a different conclusion had been reached, and we had found that the transfer was one given simply as security or collateral, there would have been no difficulty in determining that plaintiff had no standing in a court of equity, and was barred by her own acts from any relief
It follows that as to the defendant Hosier the judgment appealed from should be reversed, with costs, and judgment entered in his favor dismissing the complaint of the plaintiff herein as to him.
As to the defendant Marsh, the court dismissed the complaint, but without costs, and made findings finding him guilty of fraud. The dismissal was upon the ground that he was not a necessary or proper party to the action. As it was necessary for him to appeal in order to secure a review of the determination that he had been guilty of fraud, the findings that he had been guilty of fraud will be reversed, and he should have the costs of this appeal as against plaintiff.
The following findings of fact contained in the decision herein are hereby reversed: III, IV, V, VI, IX, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XXI, XXII, XXIII, XXIV, the entire third sentence of XXV, XXVI, XXVII, XXVIII, XXIX, XXXI, XXXII, XXXIII, XXXIV.
The following conclusions'of law contained in the decision are also reversed: I, II, III, IV.
The following findings of fact proposed by defendant Hosier are found: Second, third, fourth, fifth, sixth, seventh, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, six
Also the following conclusions of law proposed by said defendant Hosier: First, second, third, fourth, fifth.
The following findings of fact proposed by defendant Marsh are also found: First, second, fourth, fifth, sixth, seventh.
Also the conclusions of law proposed on behalf of said defendant Marsh, numbered first and second.
Judgment will be entered in accordance herewith.
Clarke, P. J., Latjghlin, Page and Merrell, JJ., concur.
Judgment dismissing complaint as to defendant Marsh affirmed, and the finding that said defendant had been guilty of fraud reversed, with costs of this appeal to said defendant. Judgment as to defendant Hosier reversed, with costs, and complaint dismissed as to said defendant, with costs. Settle order on notice.
