90 N.Y.S. 985 | N.Y. App. Div. | 1904
The claim against the estate was presented in the form of a letter. No attempt was made to comply with the provisions of section 2718 of the Code of Civil Procedure regulating such procedure. The parties, however, in disregard of the informal presentation, adopted the letter as the basis of the issue, by consent referred the same, and have litigated without objection every question upon which it was based. The plaintiff, therefore, became entitled to recover, if upon any theory presented by the evidence he established a valid, legal demand against the estate of the testator. The'letter, together with the proof, clearly identifies the character and amount of the claim and the transaction out of which it arose. This is sufficient if the evidence shows that the testator was indebted to the plaintiff. (Titus v. Poole, 145 N. Y. 414.)
Upon a former appeal (5 App. Div. 71) this court held that the relation which existed between the plaintiff and defendant’s testator in respect of the claim sought to be established was that of copartners in a particular venture ; that the $300,000 which was represented by deceased as the purchase price of the mines under the original contract was to be taken as the basis upon which the plaintiff and his copartners made their contribution of $75,000 for a one-fourth interest, and that if in fact the purchase price was less than the sum of $300,000, to that extent defendant’s testator held a proportionate part of the $75,000 as a trustee for the plaintiffs; that such sum so established, whatever it be, the plaintiffs were entitled to recover in this proceeding. The additional evidence presented upon the last trial strengthens the proof given upon the former trial, and sustains the conclusion which the court announced on the former
It is no objection, therefore, to the plaintiff’s claim that in the establishment of it he has found it necessary to examine the accounts of defendant’s testator, and also in showing a course of dealing between him and the vendors of the mines, both as to the particular transaction and others, and also in showing that false representations were made to induce the plaintiff and his copartners to embark in the venture. If from it all the plaintiff succeeds in establishing the fact that the purchase price paid in property and money for the mines was less than the sum which was represented to the plaintiff and his copartners as having been paid, he will have made out a cause of action even though equitable rules are invoked in order to award a recovery. This being the status of the parties their rights are to be determined based thereon. The letter which formed the basis of the proceeding made claim to the sum of $25,000 upon the theory that the original purchase price was $300,000, and that subsequent to such purchase the vendors allowed a rebate of $100,000 to the defendant’s testator upon the purchase price and one-fourth of such sum the plaintiff claims belonged to him. It was found by the referee, and is admitted by the appellant, that there was no evidence adduced showing that any such rebate was ever paid. This, however, is not an essential feature to the plaintiff’s right of recovery. The basis of such right, if it exist at all, rests in the fact that the deceased possessed himself of moneys belonging to the plaintiff and his copartners to apply upon the pur
The referee has found that this sum was paid, and his finding is to be sustained, if it be fairly supported by the testimony. Indeed the plaintiff is bound to establish that such sum was not paid. It is not pretended that $200,000 in cash was delivered in a single payment. The sums which made it up were paid at various times and in varying amounts. The appellant claims that a fair analysis of the testimony shows that three items at least, and he claims more, which went
It follows that the judgment should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.
Van Brunt, P. J., and Laughlin, J., concurred; Patterson and O’Brien, JJ., dissented.
Judgment reversed, new trial ordered before another referee, costs to appellant to abide event.