| N.Y. App. Div. | Dec 23, 1927
The question to be determined upon this appeal is whether there is evidence sufficient to sustain a jury finding of authority in a son of the defendant’s testatrix to whom she had intrusted the management of her real property to bind her upon promissory notes signed by said son as her agent in a name which she had assumed.
The plaintiff recovered in the Municipal Court niife judgments upon certain promissory notes made on behalf of the defendant’s testatrix following the verdict of a jury. Originally the actions were predicated upon work and materials furnished, as well as upon notes given in payment therefor. At the trial the plaintiff elected to rely upon the notes only and gave no proof in support of the claims for work and materials. The Appellate Term has
It appears that the defendant’s testatrix upon the death of her husband became possessed of certain real property apparently devised to her under the will of her husband. Her accounts as executrix were subsequently settled and the property distributed,, but she never was formally discharged. She continued to manage the property through her son Joseph, as agent, under the name of “ Estate of John McColgan.” The son while so managing the property as her agent, ordered work done thereon and in payment gave certain notes signed by him “ Estate of John McColgan, by Joseph T. McColgan, Agent.” Certain of these notes were consolidated into a single note for $4,310.68, signed “ Estate of John McColgan, by Joseph T. McColgan, agent.” An action was commenced upon this note against the defendant’s testatrix, as executrix, and after the latter had been served and had put in a verified answer this action was settled by an agreement signed “ Elizabeth McColgan, executrix of the Estate of John McColgan, deceased, by Joseph T. McColgan, agent,” and also signed by the attorney who defended the action on behalf of defendant’s testatrix. Said agreement called for the payment of new notes in smaller amounts, payable progressively, with the right to enter judgment in the event of default in the payment of any of said notes. These notes were signed “ Estate of John McColgan, by Joseph T. McColgan, agent,” as aforesaid, and were paid as they became due until January 15,1917, two days before the death of Joseph T. McColgan. Thereafter the defendant’s testatrix repudiated the notes remaining unpaid. The plaintiff then entered judgment against the defendant’s testatrix as executrix, pursuant to the settlement agreement executed as aforesaid. Defendant’s testatrix moved to vacate this judgment, denying that she had signed and verified the answer. These issues were referred to a referee, determined adversely to the defendant’s testatrix and the referee’s report confirmed and affirmed on appeal. (197 A.D. 944" court="N.Y. App. Div." date_filed="1921-06-15" href="https://app.midpage.ai/document/read-v-citron-5262490?utm_source=webapp" opinion_id="5262490">197 App. Div. 944.) The surrogate, however, denied to the plaintiff leave to i^sue execution against the estate of John McColgan or against the defendant’s testatrix as executrix, upon the grounds that the estate had been distributed and the obligations in question were personal obligations of the defendant’s testatrix. The plaintiff was unsuccessful in attempts to have the judgment against the defendant’s testatrix, as executrix, amended so as to be a judgment against her individually. The plaintiff then commenced these actions against the defendant’s testatrix individually, and she having died,
Taking up first the notes given in connection with the settlement agreement, we find that defendant’s testatrix in that action affirmatively alleged in her answer as follows: “ That before the commencement of this action and during the year 1914, the defendant paid to the plaintiff the sum of $4,310.68 in full payment of said work, labor and services by delivering to him seventy promissory notes, checks and cash in the amount of $4,310.68 and the same was accepted by him in full payment.” The promissory notes referred to in the answer were executed in the same manner as the note sued upon in that action, namely, “ Estate of John McColgan, Joseph T. McColgan, Agent.” We have, therefore, a direct admission by the defendant’s testatrix, as executrix, of the authority of Joseph T. McColgan to execute the notes previously given. As before noted, after a full hearing upon the merits, the contention of the defendant’s testatrix, as executrix, that she had not been served or signed the answer was determined against her. Under well-established principles of estoppel, Elizabeth McColgan, as executrix, was bound by the settlement agreement. The action was discontinued following the settlement agreement which, as noted, was also signed by her attorney of record, and the Statute of Limitations has run upon the claim for work, labor and services, for which the notes were given. It thus appears that the plaintiff cannot be restored to the situation in which he was at the time when the settlement agreement was made, and hence the defendant, as executrix, cannot repudiate the same, for that would be permitting defendant's testatrix, as executrix, to retain that part of an agreement which was beneficial to her and to repudiate that part which was to her disadvantage. (Montwil v. American Locomotive Co., 173 A.D. 387" court="N.Y. App. Div." date_filed="1916-05-18" href="https://app.midpage.ai/document/montwil-v-american-locomotive-co-5241487?utm_source=webapp" opinion_id="5241487">173 App. Div. 387.)
We now take up the second class of notes, namely, those given in payment for work and materials furnished subsequent to the settlemeht agreement. In accepting said notes the plaintiff was
We are thus brought to consider whether the defendant’s testatrix is bound both individually and as executrix.
The defendant’s testatrix in the action brought against her as executrix expressly admitted the authority of her agent to issue notes signed “ Estate of John McColgan, by Joseph T. McColgan, agent,” in payment for work and material furnished in connection with the properties which she was managing for her individual benefit under that assumed name. Said action was settled by the same agent by the giving of installment notes signed in the same way. As already noted, the agreement settling that action was signed on behalf of Elizabeth McColgan, as executrix, by Joseph T. McColgan, as agent, and also by her attorney of record. As the authority to make this settlement agreement cannot now be repudiated on behalf of Elizabeth McColgan for the reasons hereinbefore set forth, it thus appears from this settlement agreement that Elizabeth McColgan, as an alleged executrix, adopted the name “ Estate of John McColgan, by Joseph T. McColgan, agent.” This fact was also so adjudicated some twenty-seven years earlier, when in an action brought by defendant’s testatrix for the recovery ©f rent under a lease it was said by Mr. Justice Leventritt, in the Appellate Term (McColgan v. Katz, 29 Misc. 136" court="N.Y. App. Term." date_filed="1899-10-15" href="https://app.midpage.ai/document/mccolgan-v-katz-5405774?utm_source=webapp" opinion_id="5405774">29 Misc. 136): “ It appears that the plaintiff was executrix under the will of her husband, John McColgan, and that she conducted her real estate transactions under the style of ‘ Estate of John McColgan.’ ”
But Elizabeth McColgan was in fact acting individually and not as executrix, for as executrix she had already distributed the estate, and when an effort was made to issue execution against her, as executrix, this application was defeated upon the ground that the obligations had been incurred subsequent to the death of her testator, and hence were her individual obligations and that she had accounted as executrix and that the estate had been distributed many years before. It, therefore, follows that Elizabeth McColgan individually had thus in effect adopted the name of the “ Estate of John McColgan, by Joseph T. McColgan, agent,” as an assumed name.
As was said by Judge McLaughlin, when a justice at Special Term, in Hutchins v. Hutchins (18 Misc. 633" court="N.Y. Sup. Ct." date_filed="1896-12-15" href="https://app.midpage.ai/document/hutchins-v-hutchins-5403666?utm_source=webapp" opinion_id="5403666">18 Misc. 633, 638), a case where
It may not be amiss to add that the result here reached affords satisfaction in that it pays in part at least the plaintiff for work and materials which he expended upon property of defendant’s testatrix, and that not wholly has the endeavor been successful to satisfy the debt for this work and materials by legal technicalities rather than cash.
It follows that the determination of the Appellate Term should be reversed and the judgments of the Municipal Court reinstated, with costs in this court and in the Appellate Term.
McAvoy, Martin and O’Malley, JJ., concur.
Determination of the Appellate Term reversed and the judgments of the Municipal Court reinstated, with costs to the appellant in this court and in the Appellate Term.