83 N.Y.S. 503 | N.Y. App. Div. | 1903
Dr. Thomas C. Durant died intestate on the 5th day of October, 1885, leaving him surviving as his only heirs at law and next of kin his daughter, the plaintiff, his son, the defendant, and his widow, Heloise H Durant, since deceased. Dr. Durant had been the owner of a large amount of property, and at the time of his death it was somewhat involved, and several judgments had been entered against him. This trouble principally grew out of the affairs of the Adirondack Railroad Company, of which he was the president and chief promoter. On the day of his funeral there was a conversation be
Practically the only question left for this court to determine is, was there sufficient evidence to warrant the referee in finding that the property held by Dr. Durant purporting to be as agent his individual property? The specific property to which such question relates was further narrowed by admissions and otherwise to the Cheney and Rosekranz mortgages, the so-called first mortgage bonds of $75,000, the certificates for the stock and second mortgage bonds of the Adirondack Railway Company, the money received on the forfeit of the Crane contract, a certain note of the Adirondack Railway Company for $37,140, and the rental of two locomotives and a car paid by the railway company. The referee found that Dr. Durant owned $114,500 of the Rosekranz mortgage at the time of his death, and that the defendant subsequently acquired the remainder thereof, $35,500, with money derived from the “Durant interest,” for which the defendant is accountable. The evidence upon this point is documentary in character, and is contained in assignments from Rosekranz to Dr. Durant. By these assignments it is established that Dr. Durant owned of this mortgage $82,500. In 1868, Rosekranz assigned to Dr. Durant and one Bushnell $50,000 of this mortgage. In November, 1871, Bushnell
The referee has also found that the so-called first mortgage of $75,000 was executed by the Adirondack Railway Company in January, 1883, “to reimburse for moneys received from T. C. Durant, agent”; that $63,238.78 thereof was issued and assigned to Durant, “agent,” .in February, 1883; and that this item was the property of Dr. Durant in his lifetime. The same is also true as to the Adirondack Railway Company note of $37,140, which, with interest, amounted to $39,--041.97. It was stipulated that this note was made payable to T. C. Durant, agent; also that the proof of the rolling stock, which was •mentioned in stipulation No. 3, was owned by Dr. Durant; and that all of the second mortgage bonds to Durant, “agent,” which amounted to $630,908.77, were likewise his property. This entire issue was payable to Thomas C. Durant or bearer, and he was entitled to surrender these bonds and receive therefor new certificates. After his death this was done, and the new certificates were made out in the name of Mrs. Heloise H. Durant by the direction of the defendant. The evidence which was introduced by the defendant to defeat the plaintiff’s interest in the last four items is all of the same class, and rests upon the same testimony, i. e., that Dr. Durant dealt with this property and was in fact the agent of his wife. The basis of this ■claim is built up from the fact that in 1853 Mrs. Durant had a small •sum of money from her father’s estate, and that Dr. Durant had this money; that from time to time, being a man of considerable wealth, he made gifts of considerable sums and securities to his wife, whereby she became possessed of an independent property, which he subsequently took and invested in promoting and building the Adirondack Railway Company. It is not necessary that we rehearse the details in connection with this matter. This claim, coupled with the use of •the word “agent,” is the basis upon which it is sought to show that Dr. Durant did not own this property, but held and dealt with it as the agent of his wife. There is no evidence that Mrs. Durant had knowledge of the fact of such agency, or that she was the owner of this property during the lifetime of Dr. Durant, and the fact remains ¡that the whole of the property through assignments and other instru
It should therefore be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON and INGRAHAM, JJ., concur. LAUGHLIN, J., not voting.