71 N.Y. 280 | NY | 1877
This is an action for a recovery by the plaintiff of a sum of money advanced by him to his daughter, on her promise that it should be repaid in an event not unlikely to happen. There is no doubt, from the proofs, and from the finding by the jury, and by the learned trial justice, of the promise made and of the advance upon the strength thereof. The daughter was, at the time, a married woman; but her promise was not invalid for that reason. As soon as the advance should have been made to her, the money would be her separate estate. The promise of a married woman is valid, when her separate estate is properly pledged for the performance of it; or when the transaction is for the benefit of her separate estate. It is also valid, when it is given as a part of a transaction, the purpose and end of which is to create for her a separate estate. (Westervelt v. Ackley,
This disposes of the main question in dispute. There are some minor ones raised upon the appellants' points.
It is urged, that as this was an equitable suit, brought in one branch of it, to establish a lien upon the farm for the amount advanced; and as it failed in that particular, it should have been dismissed against the executor defendant as well as the other defendant. But the complaint was so framed as to present a case for equitable cognizance. Thus the court, on its equity side, got jurisdiction of the subject-matter and of the parties. There was no demand at any stage of the case, by the defendants, that a jury should pass upon the case. The court could, then, though the plaintiff failed to establish his right to a lien, inasmuch as he made out a promise of the testator broken, give him judgment for his damages therefor, payable out of the property of the testator in a due course of administration. (Phillips v. Thompson, 1 J.C.R., 131; Marquat v. Marquat,
It is claimed that, though the complaint, as against Becker, was dismissed, it was error not to have done so with costs to him. This was a suit in equity. In such case, costs are in the discretion of whatever court passes upon the question of costs. With the discretion in that regard exercised by the trial court, this appellate court cannot, as a general rule, interfere. Becker saw fit to appeal to the General Term, because costs were not given to him. That court mulcted him in the costs of the appeal. There is no error. It also had a discretion over costs.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed. *285