Delafield v. Colden
1 Paige Ch. 139
New York Court of Chancery
1828
Check Treatment

The Chancellor:—The preliminary question which has been raised as to the admissibility of the transcript of the broker’s books kept by Delafield, and which transcript is in the handwriting of his deceased clerk, it is not neces*143sary for me to consider; and I lay the evidence derived from those hooks entirely out of the question, in the decision of this cause. Independent of these books, there is no evidence that Delafield paid the loss upon the brig Eagle, or upon the cargo of the Dorchester. On the other hand, there is no evidence that Church ever paid the same, or any part thereof. In the absence of all proof on the subject, the fair presumption is, that both losses were paid out of the partnership funds; and in that case, it is perfectly immaterial which partner actually paid the loss. By the indorsement on the back of Delafield’s bond, which indorsement was signed by both of the partners, it appears that as late as the 1st of November, 1806, nearly eight years after the dissolution of the partnership and more than seven after the adjustment of the loss under the last policy, the partners had a settlement of accounts, of what kind does not distinctly appear; although from the memorandum indorsed on the bond, I think it was not the partnership account. But after a lapse of thirty years from the dissolution of the partnership, it may fairly be presumed that all the partnership accounts were closed previous to the time of the indorsement on the bond. There could be no reason at that time for leaving this part of the partnership accounts open. Although a nominal claim existed against the Spanish government, neither party could then *have had any reasonable expectation of receiving indemnity. There can, therefore, be no doubt of the equitable right of the executors of Delafield to receive their moiety of the net proceeds of the amount awarded under the Florida treaty, on account of the underwriting these two policies by Church during the existence of the partnership. But it is contended that the money was awarded by the board of commissioners, on memorials claiming it on account of the administratrix of Church alone; that Delafield ought to have put in his claim, and contested his right before the commissioners; and that having neglected to do so the award is conclusive against his right.

*144On referring to the treaty, and to the law organizing the board of Florida commissioners, I am satisfied such cannot be the effect of the award. The object of organizing the board, was to ascertain who were entitled to indemnity against the Spanish government. It never could have been intended that the board should investigate all the various equities which might arise as to the distribution of the fund awarded for any particular injury. The persons who have prosecuted these claims, and obtained the money on account of any illegal capture or condemnation by the Spanish authorities, are trustees, and are accountable in equity to the real parties who were entitled to the indemnity awarded by the commissioners. But in this case, the complainants must pay their share of what the administrators of Church agreed to give Mr. Hamilton for Ids' services in obtaining the adjustment of the claim. The whole sum being received by Mr. Golden at the same time, that which has been paid over to the defendant Bunner, must be applied towards the satisfaction of those claims which he was entitled to receive; and the complainants are entitled to their indemnity, out of the moneys still remaining in the hands of the executors of Ferrers. Those executors having no interest in the question, they are entitled to their costs out of the fund; and the complainants will, in that case, have their remedy over for those costs, as well as the general costs of the suit, against the other *defendants. But as the administrators of Church ought not to be personally charged with the payment of any costs, and the money in the hands of the executors of Ferrers being sufficient for the purpose, I shall direct that out of the moneys in the hands of such executors, they pay to the complainants the one-half of the net proceeds of the sums received on account of the indemnity of Church upon the brig Eagle, Churchill, master, and upon the cargo of the schooner Dorchester, as stated in the schedule annexed to their answer, after deducting therefrom the share of the expenses and commissions of James A. Hamilton, as specified in the answer of the defendants *145Bunner and wife, and in the schedule thereto annexed; and that the said executors of Ferrers pay those expenses and commissions to the said Hamilton, or to the defendant Bunner, for his use; and that out of the other half or residue of the said net proceeds, the said executors of Ferrers retain their own costs of this suit: and that they also pay to the complainants their costs of this suit to be taxed, and pay over the residue thereof to the defendants, Rudolph Bunner and his wife, as the personal representatives of John B. Church, deceased.