6 Barb. 330 | N.Y. Sup. Ct. | 1849
The plaintiff had a right to sue on the note in question in his own name, or as executor of John Sampson deceased. (Mercein v. Smith, 2 Hill, 210. Colby v.
The statute, in its terms, (2 R. S. 2d ed. 279, § 37,) seems to be broad enough to admit a set-off in all suits brought by executors and administrators: but the construction that has been given to it by the courts is now too well settled to be questioned, and is clearly necessary, as well since as before the revised statutes, to give effect to the policy of the law in regard to the distribution of estates.
The objections above stated might not however apply to the note in question; for although it was made after the death of the testator, it was given only for a balance due the estate. The transaction was no more in fact than a liquidation of a demand due the estate, and a promise to pay the balance. If this suit had been brought on the original demand for which this note was given, the right of set-off could not be questioned. But this view of the case does not relieve the defendants from difficulty. They consented to give the note in question in such a form as would have entitled the plaintiff to sue on it in his own name; and it will not be pretended that if he had done so, the defendants could have made the set-off. The plaintiff did not do so, but he chose to sue on it as executor, and to put in issue only promises made to himself as executor, and by his notice subjoined to his declaration to make the note in question his only cause of action. I think, therefore, the plaintiff had a right to object on the hearing to the allowance of the set-off, on the ground that the cause of action, in the form given to it by the consent of parties, arose after the death of the testator.
The next question to be considered is, whether the objection to the admission of the set-off was properly made. The objection to the admissibility of evidence in support of the set-off was 11 that such proof was incompetent under the circumstances of the caseIt could not have been made in more general language; and it is now urged that the ground of the objection should have been specifically stated, to entitle the plaintiff to avail himself of it on this application.
There, as in this case, it might not have been in the power of the party to obviate the objection on the trial, if it had been specifically made. But a knowledge of the true ground of objection, if it was deemed to be well taken, might have enabled him to take such steps as would have secured himself against loss. In the case we are considering, the demands sought to be set off, if rejected, are now barred by the statute of limitations. If the true ground of objection had been frankly stated, at the trial, the defendants might have withdrawn their set-off, and have saved their demands by bringing a cross action. I think, on the whole, it is fair to say that the objection was too general, and that the plaintiff can not now, for the first time, avail himself of a ground for excluding the defence, not pointed out on the trial.
At another stage of the trial, the plaintiff objected to the evidence tending to charge the plaintiff with commissions, on the ground that accounts had previously been rendered by the defendants which had been settled and paid by the testator. This objection was not well taken. Such previous accounts were for disbursements only, and their payment furnished no presumption that the services performed were not also to be paid for. (Pringle v. Clenahan, 1 Dallas, 486.)
The objection to the introduction of the testator’s letters to John F. Seaman was equally untenable. The written declarations of the testator, no matter to whom made, were clearly admissible so far as they referred to the matters in controversy; and it was a question of fact for the referee to settle, on all the evidence, whether the services sought to be set off were rendered by John F. Seaman alone, or by all the defendants. Nor does the giving of the note raise any presumption against the defendants’ set-off; it being proved that the parties agreed, when the note was given, that it should not prejudice the defendants’ claim.
It is unnecessary to examine fully the other less important exceptions taken by the plaintiff on the trial, or the questions
Harris, J. concurred.
Wright, P. J. dissented. Motion denied.