94 N.Y.S. 238 | N.Y. App. Div. | 1905
This case was originally brought against Leon Abbett, individually and as survivor of a copartnership of Abbett & Fuller, who had acted as attorneys in fact for the plaintiff, and against the executors of William J. A. Fuller, deceased, a member of that copartnership, to obtain an accounting from the firm of Abbett &
It would be manifestly impossible for the court in determining this case to discuss each of these exceptions, and it will not be attempted. It is sufficient to say that we have considered the argument of the learned counsel for the appellants and are satisfied that by the report of the referee substantial justice had been done. Nor shall we attempt to discuss the exceptions to rulings upon evidence, as we think that no error has been committed which would justify a reversal of the judgment. We will only call attention to one or two legal principles which we consider should be applied to indicate the views that we have taken in disposing of this appeal.
Abbett & Fuller were attorneys and counselors at law, practicing in the city of New York, and on the 6th day of November, 1881, Clark L. Sharpsteen, a resident of New York, died in the city of Paris, France, leaving the plaintiff, his widow, and one child, the defendant Mary H. Sharpsteen, his only next of kin, and also leaving a last will and testament which was duly admitted to probate by the surrogate of the county of New York in which he appointed the plaintiff executrix. Other executors were appointed, one of whom did not qualify. The other qualified, but shortly afterwards resigned and was discharged. There was bequeathed to the plaintiff individually the sum of $200,000, and the rest, residue and remainder of the estate was bequeathed to the executors in trust, to apply $8,000 per year to the support, maintenance and
The relation that existed between the plaintiff and the defendants’ testators was that of principal and agent. The defendants’testators were not in any sense trustees of any property to which the plaintiff was entitled. While the relation was undoubtedly confidential and fiduciary in its nature, on this accounting it was not essential that each item of payment should be proved with the particularity required of a trustee who has received the property and held it in trust for beneficiaries. The property that had been received by the attorneys belonging to the plaintiff, either individually or as executrix or trustee under the will of her husband, was directly payable to the plaintiff, and any payment to her or by her direction discharged her attorneys from liability for such payment; and such payments could be satisfactorily established by an accounting from time to time between the attorneys and their principal where the accounts were accepted as correct. Where suclr accountings were had and accepted, and thus became in a sense accounts stated, the burden was upon the plaintiff of disproving the accuracy of the accounts
We think it is clearly established that Mr. Fuller from time to time accounted to the plaintiff for all the money that he had received, acting as the plaintiff’s attorney in fact, except possibly the small amount that was found by the referee as having been charged against the plaintiff twice by an error. It is quite true that, in view of the method adopted by Mr. Fuller in keeping account of money that he had received for the plaintiff, and the method adopted by the plaintiff in calling upon Mr. Fuller to make payments for her of every conceivable kind out of the property in his hands or which he was to procure belonging to her, it might be somewhat difficult to prove each particular payment by competent evidence after Mr. Fuller’s death; but we think the evidence before the referee in connection with these periodical accountings, which were submitted to and accepted by the plaintiff as correct, justified the referee in finding that the defendants had accounted to the plaintiff for all property that had come into the hands of Abbett & Fuller during the continuance of the relation that existed between them and the plaintiff; and as we have concluded that the referee’s report was sustained by, the evidence before him, we would not be justified in reversing the judgment entered thereon.
There is, however, one provision of the' judgment that must be modified. The referee awarded to the plaintiff a judgment for $-411.60 against the executors of Fuller, but at the same time awarded Fuller’s executors a judgment for costs against the plaintiff which amounted to $258.05. We do not think this award of costs can be sustained. It has been found by the referee that upon the accounting there was due to the plaintiff from the estate of Fuller the sum of $411.60 for which the plaintiff was entitled to a judgment. Considering the amount of the plaintiff’s claim, this was a substantial defeat of the plaintiff and would justify the court in refusing to award her costs; but as she had a right to an accounting, which was not substantially disputed, and upon that accounting a sum of money was found tó be due to the plaintiff from the estate
It follows that the judgment should be modified by striking out the award of costs to the defendant Fuller, and as thus modified it should be affirmed, with costs in favor of the defendant Abbett, as executor, against the plaintiff, and without costs as to the defendant Fuller.
O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment modified as directed in opinion, and as modified' affirmed, with costs to defendant Abbett, and without costs as to defendant Fuller.
