75 N.Y.S. 83 | N.Y. App. Div. | 1902
The evidence in this case is sufficient to support the conclusion, evidently reached by the learned court at Special Term, that on or about the 1st day of May, 1895, at the borough of Brooklyn, the plaintiff and defendant entered into a verbal agreement for the purchase of premises known as Nos. 23 and 25 Tiffany place, Brooklyn ; that the plaintiff and defendant contributed an equal amount of money to a fund for the purchase-, of this property, which was to be subject to the mortgages then a lien thereon, and that the said property was to be enjoyed in common between plaintiff and defendant, and the rents, issues and profits and losses, if any, were to be shared equally between the parties, after paying interest on existing liens and mortgages, taxes, water rates, assessments and other expenses incident thereto; that the property was purchased,, the title being taken in the name of the defendant, and that the plaintiff and defendant entered into possession of the same, and continued to occupy the same as tenants in common for several years, each party paying upon the indebtedness, and each at times collecting rents, etc., and acting as the joint owners of the premises.
There can be no reasonable doubt from the evidence that the plaintiff and defendant, who are brothers, owned the premises in ■dispute as tenants in common; that they so understood the transaction until some time in 1899, when they appear to have dissolved ■a partnership existing between them in the trucking business, and to have drifted apart in their affairs, and the defendant undertook to take advantage of the fact that the paper title to the premises
We are unable to reach the conclusion that the issues raised upon the trial of the present action are res adjudicata • we do not think the action brought in September, 1899, involved the same issues as those presented in the case at bar, although some of the allegations of the pleadings' are very similar.
While the evidence of the value of the subject-matter involved is not as clear and definite as might be desired, we are of the opinion that thefe was sufficient evidence to show that the property interest of the plaintiff in the premises was worth at least $2,000, and this would seem to justify the award of a special allowance upon this amount. (Black v. Brooklyn Heights R. R. Co., 32 App. Div. 468, 474, and authority cited; Woodbridge v. First National Bank 45 id. 166, 172; Deuterman v. Gainsborg, 54 id. 575, 581.)
The judgment appealed from should be affirmed, with costs.
All concurred, except that Bartlett, J., is of the opinion that the testimony as to the value of the property is too indefinite to afford any basis, for an extra allowance.
Interlocutory judgment affirmed, with costs.