30 Barb. 110 | N.Y. Sup. Ct. | 1859
The referees, it seems to me, erred in several particulars on the trial and decision of this cause. In the first place, the commission, and
But upon the merits, other errors, more important, occur. In the first place, it appears that on the 4th day of May, 1839, the plaintiff and Seymour Tracy became the owners, with the defendant’s testator, of an undivided half of the lot of land referred to in the case, under an agreement, as the referees find, that the plaintiff should receive $300 a year for taking the charge and oversight thereof. This agreement was made, necessarily, with his tenants in common, and as a personal claim was a claim against both of them, and survived against Seymour Tracy on the death of the testator, Legg; and no action at law, or suit in equity, would lie against the defendants singly therefor, Seymour Tracy being still living, until his inability to pay the same had been legally ascertained or clearly shown. (2 Denio, 585. Voorhis v. Childs’ Ex’r, 17 New York Rep. 357.) But the agreement, as found by the referees, made between Legg and the two Tracys, in May, 1839, for the payment of $300 to the plaintiff for his care and oversight of the farm, clearly terminated with the sale of the farm on the 14th March, 1842. On the repurchase of the farm by Legg and the plaintiff in May, 1844, the agreement for the salary did not, ipso facto, revive. And there is no proof of any new agreement between Legg and the plaintiff for its revival or continuance. The referees, therefore, clearly erred in allowing the plaintiff a salary of $300 for six years, against the defendant, as for his services in respect to the farm, upon the basis of the original agreement for such
On the trial before the referees, the plaintiff must prove his claim and satisfy the referees of its justice and validity, and every species of legal proof adapted to show the injustice, of the claim, or its invalidity as a whole, or in degree or amount, must be admissible. Within this rule a set off may
It was the obvious right and duty of the executors to interpose this objection to the plaintiff's recovery, and I cannot see why it was overruled by the referee, or why it was not a complete defense to the whole cause of action.
The judgment should be reversed, and a hew trial granted, with costs t& abide the event.
Judgment reversed and new trial granted.
T. R. Strong, Johnson, Welles and Smith, Justices.]