79 N.Y.S. 303 | N.Y. App. Div. | 1902
This is an action for the specific performance of an agreement alleged to have been made with the plaintiff by George F. Gilman, since deceased, “ that if she should continue to live with him and
The appellant, according to the allegations of the complaint, is the daughter of a deceased sister of said George F. Gilman. The first ground of her demurrer is that the amended complaint does not state facts sufficient to constitute a cause of action against her. Her first point in this regard is that the allegations of the complaint are insufficient to establish any claim on the part of the plaintiff as an adopted daughter of the decedent. This is apparently conceded by the respondent and, therefore, need not be considered.
The appellant further contends that the agreement is void for uncertainty and that the circumstances are not such as would justify a court of equity in enforcing specific performance. Upon demurrer where, as here, the demurrer is upon the ground that the complaint does not state facts sufficient to constitute a cause of action, it must be assumed that all of the facts alleged in the complaint as well as those that may be inferred or implied therefrom by reasonable and fair intendment are true. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451.) Tested by this rule the complaint, we think, sufficiently states an agreement “ reasonably certain as to its subject-matter, its stipulations, its purposes, its parties and the circumstances under which it was made ” (Stokes v. Stokes, 148 N. Y. 716; 3 Pom. Eq. Juris. § 1405), to give a court of equity jurisdiction to compel specific performance. She does not expressly allege that she accepted the agreement and remained with the decedent pursuant thereto; but she avers that the decedent “ entered into ” the agreement with her and that she fully performed it on her part. Therefore, it may fairly be inferred, under the rule stated, that she agreed with the decedent to do the things upon which his agreement to leave her the property was conditioned. Nor can it be said on the allegations of this complaint that the contract was void as against public policy. The testator was a widower and had no issue and was on unfriendly terms with all his collateral relatives. It
It cannot be said as matter of law that performance of this agreement should not be enforced. That question will rest in the first instance in the sound discretion of the court of equity to be exercised upon the evidence as presented upon the trial. The rule applicable to the specific performance of such agreements is well stated by Martin, J., in Winne v. Winne (supra) as follows: “ The right to the specific performance of a contract rests in judicial discretion and may be granted or withheld upon a consideration of all the circumstances, and in the exercise of a sound discretion. (Seymour v. Delancey, 6 Johns. Ch. 222; Margraf v. Muir, 57 N. Y. 155; Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y. 29; Stokes v. Stokes, 155 N. Y. 590.)
“ Therefore, in cases of this character, where it appears for any reason that the enforcement of an agreement would be unfair, inequitable or unjust, the remedy should be denied. Each case must be governed by its own facts and circumstances, and unless the proof discloses a situation where good conscience and natural justice require the enforcement of the agreement, this relief should not be awarded.”
The second ground of demurrer is that a cause of action against the decedent’s administrators for specific performance of his contract is united with a cause of action against his heirs. The complaint shows the appointment of an administrator in New York and another in Connecticut, and they are made parties defendant. The complaint states but a single cause of action based upon the agreement made by the decedent with the plaintiff. The plaintiff has joined the administrators and the heirs and all parties claiming an interest in either the real or personal estate. It cannot be said that causes of action have been improperly united when only one cause of action is stated. The suit being in equity, it is not essential that all the parties should be interested in the same way or affected alike by the judgment demanded. The important question of fact is the establishment of the contract; and the same evidence that will establish it as to the real property will establish it as to the personal property. It was proper to unite all of the parties interested to avoid a multiplicity of suits and have an adjudication that would determine the question as to all parties interested in the estate. Moreover, this has been the practice in this class of actions. The object of the action is to reach the property of the decedent, both real and personal, and to have the same delivered to the plaintiff and to have the claims of those asserting title or interest thereto adjudicated.
A third ground of demurrer is interposed which does not seem to conform to the provisions of the Code. The appellant’s counsel in his points interprets it as a demurrer upon the ground of multifariousness. This is not a ground of demurrer authorized by the Code. It is stated in the third ground of demurrer that the complaint alleges a cause of action against the administrators in New York, against the administrators in Connecticut, against the defendants Hartford and Smith who were partners of the decedent, and against
It follows, therefore, that the interlocutory judgment should be affirmed, with costs, but with leave to appellant to answer upon payment of the costs of the appeal and of the demurrer.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment affirmed, with costs, but with leave to appellant to answer on payment of costs of appeal and demurrer.