194 A.D. 28 | N.Y. App. Div. | 1920
The claim as urged at the trial consisted of three items, viz.:
(a) For a balance of $3,631.50, represented by a certain written instrument furnished to the claimant by the deceased on August 10, 1913, as due from him to the claimant out of certain joint operations of theirs as contractors under the name of Mack Brothers.
(b) For the sum of $2,000 loaned by the claimant to the decedent on August 25, 1914; and
(c) For a further sum of $400 loaned by claimant to the decedent.
By stipulation the parties agreed that the entire claim should be tried by the surrogate upon the final accounting, and that course was taken. The surrogate took the evidence of the parties, which, as to the vital issue, was mostly confined to the testimony of the claimant’s wife. He rejected the first item as not proven, but allowed the other two. He wrote and filed a lengthy opinion in which he reviewed the evidence and gave quite fully his reasons for rejecting the first claim or item. Its statement of the facts agreed substantially with that made in each brief submitted here. Those facts are the following: In the spring of 1911 the decedent and the claimant, who had worked for the decedent for several years as foreman in his contracting business, entered into a partnership for the doing of certain contract work in the said firm name, chiefly upon street improvements. Thereafter they performed certain such work. The claimant admitted that the profits of all of such, except those involved in the said first item, had been settled and divided' between them. The claimant’s wife testified that at the claimant’s request the decedent, on or about August 10, 1913, gave to the claimant, in her presence, a statement of the “ New York work ” in his own handwriting, which was put in evidence as plaintiff’s Exhibit 9, and promised to pay latér on to the claimant one-half of the balance shown thereby. She also testified that he repeated that promise several times later, urging as a reason for the delay that he was temporarily hard up. Decedent died on July 10, 1915. The administratrix did not produce at the trial the books of decedent showing that New York busi
The surrogate’s opinion, which is very well and clearly expressed, indicates that he rejected that first item upon the following grounds or reasons, namely:
(a) The statement of August 10, 1913, does not upon its face indicate that it was a statement of account between the parties, an acknowledgment of indebtedness by decedent to claimant; but upon the other hand it looks more like a statement of the financial condition of “ Mack Brothers ” with reference to the New York business which, at least up to about that date, had been conducted by the decedent alone; and as to several of the items in the statement there is no proof that claimant was ever interested in them.
(b) The sole evidence converting that statement into an obligation of decedent is given by the claimant’s wife from her recollection of alleged oral statements, by and between her husband and decedent, made several years before she testified. She is morally, at least, strongly interested in the result and, therefore, should be given little credit.
(c) Claimant, between the giving of the statement of August 10, 1913, and decedent’s death on July 10, 1915, is not shown to have ever demanded from decedent payment of his alleged share of the balance shown by the statement; and
(d) It was the general habit of the parties to promptly settle for each job when finished and at once divide the profits thereof between them. Indeed, the claimant’s wife admitted that this was true as to every job other than those referred to in the statement.
These several reasons, at least except the first, seem sus^
I conclude, therefore, that in the interest of justice this court should reverse the part of the decree appealed from and order a new trial as to the first item or claim.
Hence, I advise that the part of the decree appealed from be reversed and a new trial ordered in the Surrogate’s Court of Rockland county as to the first claim or item, with costs to abide the event.
Jenks, P. J., Rich, Putnam and Kelly, JJ., concur.
Decree of the Surrogate’s Court of Rockland county, in so far as appealed from, reversed, and a new trial ordered in said court as to the first claim or item, with costs to abide the event.