57 N.Y.S. 502 | N.Y. App. Div. | 1899
The appellant was the son of the testator and one of the executors of his will. He’filed a claim with the executors in which he alleged that in 1880, his father and William Beard, George C. Robinson and the estate of Isaac Rich were owners in common of •certain real estate in Brooklyn, fronting on Gowanus bay; that in •order to make the property more available for vessels it was deemed .advisable that the channel in Gowanus bay should be widened and ■deepened, and that the estimated cost was $200,000. The claim •continued as follows:
“William Beard 6-10 or $11,121.31
“ J. P. Robinson 3-10 or 5,560.66
“ G. C. Robinson 1-10 or 1,853.55.” '
That he' thereafter continued his services and obtained other-appropriations, amounting to $152,500; which- said sum yah. expended by the government in the deepening of;the channel; that, the appellant, expended large sums of money and labor in the sefv-,
Objections to the claim were filed by the special guardian of the infants interested in the estate, and the matter was referred by the surrogate to Daniel Gr. Rollins, Esq., who reported that the claim had not been proved, and that it should be rejected, saying : “ In the absence of evidence showing that there was an agreement with the testator, or with some one authorized to act in his behalf, that, at the completion of the contemplated improvement, he should be liable to restore to his son the amount which his son had paid back to him on June 21, 1881, I am compelled to find, and do find, that the son’s claim must be wholly disallowed.” The surrogate confirmed the report of the referee, and from that order this appeal is taken.
In the-view which we take of this appeal it is not necessary to decide whether the agreement set up by the appellant falls within that class of contracts declared by numerous authorities to be contrary to public policy, as being an attempt to use illegitimate influence with departments of the government. (Lyon v. Mitchell, 36 N. Y. 235; Mills v. Mills, 40 id. 543; Powers v. Skinner, 34 Vt. 274.)
We think the surrogate was right in approving the report of the referee, that there was no evidence of any agreement on the part of the testator to repay to the appellant any portion of the sum which he had received from him.
In addition to this it may be said that the appellant .alleges that the four owners of the property agreed to pay him the specified sum of $25,000 when the work should be completed.. This can be construed as nothing else than a joint agreement to pay the money, and at common law the death of one of the joint promisors not only severs the joinder, but terminates the liability that belonged to the deceased, so that it cannot be enforced against his representatives. (1 Pars. Cont. [8th ed.] 31.) This rule, however, is changed by section 758 of the Code of Civil Procedure, which provides that where an action is pending the estate of a person jointly liable with others on a contract shall not be discharged by his death. (Randall v. Sackett, 77 N. Y. 480.) It would be incumbent, therefore, upon the appellant to exhaust his remedies against the survivors before' proceeding against the estate of either one of them. We
The decree of the surrogate must be affirmed, with costs.!
All concurred.
Part of decree appealed from affirmed, with costs.