158 N.Y.S. 743 | N.Y. App. Div. | 1916
The complaint alleges that the plaintiff and defendants are brothers, and are sons of John Hull, Sr., who died in the city of Binghamton on or about June 25, 1897, leaving a last will and testament, duly admitted to probate, and that the defendant John Hull, Jr., was appointed executor thereof, and thereupon duly qualified and entered upon the discharge of his duties; that under and by the terms of the said will the plaintiff was given a residuary interest of one-seventh in said estate after the payment of certain legacies which, as plaintiff is informed and believes, amounts to more than $1,478.25, and that no part thereof has ever been paid to said plaintiff; that on or about the 18th day of August, 1899, the plaintiff, at
The answer of the defendant John Hull, Jr., denies all of the material allegations of the complaint except the relationship of the parties and the fact that- he has paid over the sums mentioned to the other defendants, and sets up several defenses, and the plaintiff demurs .to the separate defenses and counterclaims, consisting of new matter, respectively set forth in the para
The learned court found as conclusions of law that the complaint failed to state facts sufficient to constitute a cause oj action, overruled the plaintiff’s demurrers, and that “ the plain tiff not asking for or desiring leave to plead over, and the alie, gations in the separate defenses and counterclaims demurred to. being thereby admitted,” it was ordered that a final judgment be entered in favor of the defendants Frank Hull and John Hull, Jr., individually and as executor of the estate of John Hull, Sr., deceased, dismissing the complaint upon the merits; that the demurrers be overruled, with costs, and that the defendant Frank Hull have judgment against the plaintiff for the sum of $97.59, with interest thereon; and that the defendant John Hull, Jr., have judgment against the plaintiff for the sum of $585.37, with interest and costs. The plaintiff appeals from the judgment.
It seems entirely clear that the complaint, which is opened to examination by reason of the plaintiff’s demurrer (Lewis v. Cook, 150 N. Y. 163), fails to state facts necessary to constitute a cause of action. The instrument which is sought to be set aside on the ground of fraud is alleged to have been “ signed and delivered to said John Hull, Jr.,” and this instrument, under seal, recites that it is “for a valuable consideration.” While it is true that under the provisions of section 840 of the Code of Civil Procedure an executory instrument under seal is only presumptive evidence of consideration, which may be rebutted, an assignment is not an executory instrument; it is completed by delivery of the assignment, and the statute has not changed the rule of the common law
The allegation of the complaint that the “ defendant, John Hull, Jr., fraudulently represented to plaintiff that it would be for plaintiff’s interest to execute and deliver said assignment, and promised and agreed that such assignment would be held by the defendant, John Hull, Jr., in escrow and not delivered to James Hull and Frank Hull, or to either of them, and not used for any purpose whatever, and would never be used or delivered unless and until such use or delivery was authorized by said plaintiff,” is not an allegation of the facts necessary to constitute a cause of action for fraud. The mere characterization of the representations alleged to have been made by John Hull, Jr., as “ fraudulent,” without telling us what these representations were, is not that plain and concise statement of facts which the Oode requires. (Code Civ. Proc. § 481.) John Hull, Jr., had no interest in the assignment; the instrument ran to James and Frank Hull, and there is nothing to show that the alleged representations of John Hull, Jr., that it would be to the interest of the plaintiff to make and deliver the said instrument were not true, or that they in any manner tended to deceive or mislead the plaintiff to his disadvantage. If the plaintiff executed and delivered the assignment on the theory that it was for his interest to do so, then the allegation that this delivery was made in escrow, to become effective only upon the plaintiff’s further action, is inconsistent with the alleged fraudulent representations, and the affirmative defenses pleaded by the defendants, demurred to by the plaintiff, tend strongly to show that the assignment was, in fact, in the interests of the plaintiff. We think the complaint was properly dismissed.
But if there could be any reasonable doubt as to the propriety of dismissing the complaint upon the ground suggested, the allegations of the 3d paragraph of the defendant’s answer,
There can be no doubt that there was an irregularity in granting an affirmative judgment upon the counterclaims, but it appears that the form of judgment was agreed to on the part of the plaintiff, through his attorney, and having once waived his rights in this regard he ought not to be heard to contend to the contrary for the purpose of overturning a judgment which seems to have done substantial justice to the parties. The rule is well established that a party may waive a rule of law, or a statute, or even a constitutional provision, enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public morals are involved; and having once done so he cannot subsequently invoke its protection (Mayor, etc., v. Manhattan R. Co., 143 N. Y. 1, 26), and no good reason suggests itself why the rule should not apply to the present case.
The judgment appealed from should be affirmed, with costs.
All concurred; Kellogg, P. J., and Cochrane, J., in result.
Judgment unanimously affirmed, with costs.