In re the Judicial Settlement of the Several Accounts Chamberlain

131 N.Y.S. 245 | N.Y. App. Div. | 1911

Woodward, J.:

The question presented upon this appeal is whether Julia 0. Smith is entitled to he paid the. balance of a salary as a school teacher, amounting to about $900, together, with an extra allowance of $2,000, under a contract between the said Julia C. Smith and Margaret J. Maurice, deceased. The question was submitted to the learned surrogate in the manner provided by law, with the consent of the. parties,- and the facts which the evidence discloses justify the conclusion of law made in the proceeding.

The facts as they are conceded to exist may be briefly summarized. For. a number of years Miss Smith had been employed by Margaret J. Maurice,- now deceased; as a teacher in a charitable school at Maspeth, Queens county, at a salary of about $390 per year and expenses. In -1906 the decedent wrote a letter to Miss Smith, inclosing a formal agreement for ■a hiring of five years, the' terms of the hiring being the same as those under which Miss Smith had been employed, except that it was provided that at the close of the term Miss Smith was to have “$2,000 invested nr otherwise.” This agreement was not signed,-but it was a part of the contents of a communication signed by the decedent, and was a part of a series of communications passing between the parties, and there is no dispute that Miss Smith has performed the agreement in good faith on her‘part, and it is conceded that Miss Maurice made'' payments upon the account during her lifetime, so that we are of the opinion that the. suggestion-that the contract was void because of -the Statute of Frauds is without force, It appeared in the evidence that Miss Maurice subsequently wrote to Miss Smith, requesting her to return the,agreement, though nothing was' said about an intention to cancel or withdraw the same, and that Miss Smith did return the paper, and that this ■ paper ' was found in ah envelope among the papers of decedent, in company with two railroad bonds of $1,000 each, the envelope benif addressed in decedent’s handwriting, “Miss Julia 0. Smith ” It seems clear, therefore, that the purpose of the decedent in requesting the return of the memorandum was not for the purpose of repudiating the agreement, but to explain the presence of the two bonds. The contract provided for $2,000, “ invested or-otherwise,” and decedent made provision for the fulfilling of this contract by leaving the two railroad bonds with the agreement addressed to Miss Smith. There is no good reason why this contract should be nullified for the benefit of a residuary legatee who does not appear to have a better claim upon the decedent than that held by Miss Smith, and the decree of the surrogate should be affirmed.

The decree of the Surrogate’s Court of Queens county should be affirmed, with costs.

Jerks, P. J., Thomas, Carr and Rich, JJ., concurred.

Decree of the Surrogate’s Court of Queens county affirmed, with costs.