111 N.Y.S. 344 | N.Y. App. Div. | 1908
This is a suit for specific performance • of an alleged oral agreement by the. defendant’s testatrix to make in effect.a testamentary disposition in favor of the plaintiff.
A publishing business was owned by the plaintiff’s brother, Frank Tousey, at the time of his death in September, 1902. At that time the plaintiff was the manager of the said business, and there is evidence tending to show that its then prosperous condition was due in large measure to his management. Said Frank Tousey left all of his property to his widow, the said testatrix, who shortly after zhis death gave a half interest in said business to the plaintiff, and it was thereafter and until'June, 1905, conducted as a copartnership. On June 3, 1905, a corporation was organized with a nominal capital of $50,000, and said business was transferred to it by the said copartners in exchange for 496 shares of its capital stock. Two hundred and forty-nine shares-were issued to the plaintiff and said testatrix, each respectively, and one share to each of two other
The only evidence in the case tending to establish the making of said contract consists of the testimony of two witnesses respecting statements made by said testatrix to them. Ho witness to said contract is produced. At the time it is said to. have been made she .made no secret of her contemplated marriage. The plaintiff asserts that upon the faith of said promise he rendered service which he would not otherwise have performed and allowed said testatrix a larger share of the earnings of said corporation than he otherwise would have allowed, and yet he trusted entirely to chance admissions, which he had no reason to expect would be made, for proof of a contract to give him property capable of yielding an income of $30,000 a year. • It may be said that he trusted to the good faith of said testatrix; but in view of the uncertainties of life and the possibility of changed conditions inducing á change of intention, the absence of any direct evidence of the contract, documentary or otherwise, at least strongly suggests that none was made. It appears that the corporation was organized to relieve said testa
Said witnesses, whose testimony is relied upon to establish the contract, appear to have been disinterested and worthy of credit. But when we come to-scan their testimony we find abundant reáson for the caution with which courts receive that glass ■ of evidence, especially in proof of contracts' like the one involved in this case. The rulés governing this class of -cases have become well established and need not be restated. We have recently had occasion to-consider the subject. (See Butcher v. Geissenhainer, 125 App. Div. 272.) That, like Roberge v. Bonner (185 N. Y. 265), was an action at law, but still we held upon, the authorities cited that evidence,which woiild ordinarily suffice, did not present á question of fact. According to the testimony of the witness McGlrew, the testatrix said that she had a perfect understanding with the plaintiff; that she was to have $30,000 a year as long as she lived or as long as the business continued; that the plaintiff had done well and was entitled to credit; that no man whom she might marry would interfere with the .business, or her arrangement with the plaintiff.. Said ■ witness inferred that -the property was to belong -to the plaintiff after the death of the testatrix, but that was because the testatrix-said that no one whom she might marry should interfere. The tes-, tatrix said to the witness Kemble, according .to his testimony, that she had hád the business incorporated, because that would be' safer; that she was to have $30,000 a year,. as long as the business warranted ; that if it did. not c'ontiniie profitable the plain-tiff was to notify her and she would retrench ; that. the. plaintiff had built up ' the business, and theTousey people were entitled to it; that if any--tiling happened to the plaintiff the business would go' on just the same; that if anything happened to her he was to have the entire business ; that she was satisfied, to get $30,000 a year as long as she lived ; that the-business belonged-td the Touscys, and at her death
The judgment should be reversed.
Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
Judgment reversed and new trial granted, costs to-abide the final award of costs. ■ ■