134 Misc. 518 | N.Y. Sup. Ct. | 1929
This is an action in equity to enforce a claim for moneys due for work, labor and services, and evidenced by notes signed by or on behalf of defendant’s testatrix. Plaintiff is barred from recovering thereon in an action at law. He asserts, however,
There are practically no questions of fact remaining in the case for decision by this court. Those that have not been admitted or conceded are established by other adjudications, which, if not absolutely binding as res adjudicata, are sufficiently persuasive to be accepted by this court. One John McColgan died in 1886, leaving several parcels of improved real estate in New York city. He devised a substantial interest therein to his widow, defendant’s testatrix herein, who will for the sake of brevity be hereinafter referred to as the defendant herein. This widow was named as executrix of her husband’s estate and duly qualified as such, and as such executrix managed the real estate so devised. In October, 1887, a decree was duly entered in the Surrogate’s Court distributing the entire estate of John McColgan, notwithstanding which fact defendant continued to manage, operate and control the realty and to incur indebtedness for and enter into contracts in reference to such property, under the name “ Estate of John McColgan.” She authorized her son, Joseph T. McColgan, to act as her agent in the management of the properties. This plaintiff furnished materials and rendered services in the improvement of a number of the buildings of which John McColgan died seized, some of which became the individual property of defendant. The son, Joseph T. McColgan, authorized such improvements, which consisted of plumbing material and the necessary services in installing the same.- In 1915 plaintiff brought suit against defendant as executrix of John McColgan upon his claim evidenced by a note signed “ Estate of John McColgan, by Joseph McColgan, Agt.” Defendant admitted the performance of the services and the furnishing of the material, but pleaded that payment thereof had been made by new notes accepted by plaintiff under an agreement that they were only to be enforced upon the death of Joseph, the -agent. This action was settled by an agreement withdrawing the answer, and providing for new notes upon which judgment
Plaintiff then moved in the Surrogate’s Court for leave to issue execution upon the judgment against defendant as executrix, and, upon the denial of such motion, moved for reargument thereof, which was also denied. Orders were entered thereon June 12, 1922. A motion was then made in the Supreme Court for leave to amend the judgment by striking out the designation of defendant therein “ as executrix of the estate of John McColgan, deceased,” she having opposed the motion for leave to issue execution against herself as executrix upon the ground that she had long since been discharged, and that liability for the debt, if it existed, was personal. This motion was also denied.
Plaintiff, in March, 1923, then brought actions at law in the Municipal Court against defendant individually, upon the notes and for work, labor and services. Defendant interposed the six-year statute as a defense, whereupon such of the actions or causes of action as involved notes whose due date antedated the time fixed by that statute were withdrawn, it being clear that no recovery could be had thereon in such an action in the face of the defense so pleaded. As to the remaining notes not so barred, judgment was rendered thereon in favor of plaintiff against defendant individually. On defendant’s appeal, the Appellate Term reversed and dismissed the complaint. The Appellate Division, however, reversed the determination of the Appellate Term and reinstated the judgments, which were paid by defendant. The facts involved in these cases and which have been duly adjudicated were carefully reviewed in the opinion of the Appellate Division written by Mr. Justice Finch (222 App. Div. 126).
The present action seeks a recovery upon the notes which were the subject-matter of the law actions barred by the six-year Statute of Limitations. It is brought against her personal representative, she having died during the pendency of the Municipal Court actions. For the purpose of clarity she is regarded as the real defendant here. It has been adjudicated that defendant was personally liable on the notes; that Joseph, her son, was agent
Defendant’s actions throughout have been marked by obvious fraud and bad faith in an endeavor to avoid a just obligation. She personally has had the benefit of plaintiff’s services and the materials furnished by him, some if not all of which went to the improvement of real estate owned by defendant individually. In the first place it has been established beyond cavil that defendant concealed her personal identity by use of the name “ Estate of John McColgan,” under which she managed her personal properties. She led plaintiff to believe he was dealing with her as executrix of such estate, with the result that he followed out remedies suitable to that situation. When he sought to issue execution against her as executrix, he was defeated by her assertion that there was no estate then existing — that it had been closed thirty-five years prior thereto and that the liability of defendant, if it existed at all, was individual and not representative. Her every move in the litigation against her as executrix led plaintiff and the courts alike to believe that an estate existed, which she represented to be “ able, ready and willing to pay all its legal obligations ” and claimed only that the notes were unauthorized, her appearance in the action a fraud and her answer a forgery.1 These charges were duly adjudicated to be unwarranted. By positive acts of fraud and deceit she led this plaintiff to pursue an impotent remedy until the statute had ran against her individually. When judgment against her as executrix had finally been entered, an action at law against her individually had been barred. She then disclosed the real defense which she had theretofore concealed, namely, that if there was any liability on the notes it was her individual liability, for there was no estate and she was not an executrix and had not been for thirty-five years. It is claimed that defendant did not intend to mislead or deceive plaintiff by her attitude. The question of intent is frequently one to be decided by the inferences to be drawn from the disclosed facts. Even though the only permissible inferences flowing from all the facts in this case did not point so clearly and unmistakably to intentional fraud, defendant would still be liable. She is presumed to have intended the natural and probable effects of her acts and representations. Nor does it
The fact that certain phases of the fraud were worked through litigation successfully carried on by defendant does not bar plaintiff’s right to relief herein. He is not obliged to proceed in such other actions to undo the wrong. (Verplanck v. Van Buren, 76 N. Y. 247; Swan v. Saddlemire, 8 Wend. 676.) In the language of Mr. Justice McLaughlin in Clarke v. Gilmore (149 App. Div. 445)I think the action was properly brought in equity under the facts in this case to prevent the defendant from resorting to the Statute of Limitations. Where one has obtained an advantage by fraud, equity will not permit him to hold it by resorting to the Statute of Limitations.” By virtue of the same authority, the ten-year, and not the six-year statute applies. Plaintiff’s action at law was not barred until 1921 at the earliest. This action was commenced in May, 1928. If, as defendant insists, the six-year statute applies, it must be taken subject to the qualification that knowledge of the fraud is essential to start that statute running. I hold that plaintiff was not chargeable with knowledge until June, 1922, the date of the surrogate’s order, at the earliest, and more probably not until the statute was actually pleaded in the Municipal Court actions subsequent to March, 1923. In either case, plaintiff’s action is well within the prescribed time. I find for'plaintiff in the sum of $1,890, with interest as demanded. Submit findings in accordance herewith.