3 Daly 199 | New York Court of Common Pleas | 1870
By the Court.
This motion should have been granted. The answer is false upon the defendant’s own showing. It avers that the bond mentioned in the complaint, and the proceeds thereof, are still held by the defendant, upon and subject to the trusts alleged to have been created by the plaintiff. This answer was sworn to on the 13th of April, 1869, and the defendant admits in his affidavit, that on the 25th day of July, 1868, he sold the bond to Yermilyea & Co., a fact which he could not deny, as the affidavit of Mr. Yermilyea, proving the fact, was used by the plaintiff, with the other affidavits, upon which the motion was made. The defendant swore in his affidavit that he sold the bond to Yermilyea & Co. at the time stated, and invested the proceeds in other securities, but does not state what securities he invested the proceeds in, nor does he name any one of them. It is difficult to conjecture why, in the fulfillment of such a trust, it was necessary to sell a registered United States bond, bearing interest, unless some advantage, benefit, or greater security tp
In view of what has been already set forth, the plaintiff’s account of what occurred at the bedside, when she was lying in immediate expectation of death, corroborated as it was by the affidavits of two disinterested persons, who were present, was entitled to credit as against the account given in the defendant’s affidavit, which was sustained only by the affidavit of the notary, who was not present when the order upon the bank, for the bond, was obtained from the plaintiff by the defendant, and whose affidavit of what occurred in his presence is very, guardedly drawn, being limited to the statement “that Mrs. Henry did not express any astonishment or alarm at the presentation of the assignments, or either of them, or of said United States bond for the execution of such payment thereof, but appeared to have been expecting said Fowler with said papers.” While intended to have that effect, it does not meet and deny the circumstantial statement sworn to by Mr. and Mrs. Smith, who give not only the incidents, but the conversation that occurred between Mrs. Henry and the defendant. Hor does it deny what the plaintiff’s daughter swore to, that the plaintiff said, “ Mr. Fowler, if I recover, you will
But in addition to this, if the trust was created as the defendant states, and the plaintiff and her witnesses deny, it was, ifpon the defendant’s own showing, a trust that was revocable. (Story’s Equity Jurisprudence, § 1196, § 972.) It was voluntary, without consideration, and was as it might be, revoked, before the beneficiaries had become parties to it, by their express assent, after notice. It was therefore absolutely gone. The plaintiff having shown that she had revoked it, it was incumbent upon the defendant, in answer to such a motion, to show by his affidavit that he had sold the bond for the purpose of reinvestment, before he had any notice of the revocation of it by the plaintiff. It is suggested in the appellant’s points that he claimed upon the motion, that his affidavit showed this, and that upon such assumption, the judge below denied the plaintiff’s motion. If that were the ground upon which Judge Barrett denied the motion, then it is sufficient to say that the defendant’s affidavit shows nothing of the kind.
The second defense in the answer, that the defendant had rendered professional services to the plaintiff, and for these services had a lien upon the bond, was both irrelevant and sham. An attorney has no lien except upon such papers of his client as have come into his hands for the purpose of business, in the ordinary course of his professional employment (Stevenson v. Blacklock, 1 Maule and Selw. 535), which was not the case here, as the bond came into the defendant’s hands upon his own statement as a trustee, and he could, conse
The order should be reversed, the answer stricken out, and the plaintiff should be allowed to take judgment, which is ordered accordingly.