Page images
PDF
EPUB

Misc.] Surrogate's Court, New York County, April, 1911.

unfortunate children for, whose very existence he had a tremendous responsibility, they might now be a county charge. It would seem that the will in question accords with the natural obligations of this particular testator, and that it was such a reparation as a man in his serious situation, on the eve of dissolution, would surely make to those he had assumed to provide for in life. In the will itself I detect nothing unnatural or "irrational on its face."

To the contestants' argument that this will overlooks those whom the law made the testator's heirs and next of kin, and gives his patrimony to his unfortunate consort and their unfortunate children, little attention is, I think, due in this particular cause. Charles Klinzner's situation was exceptional. His life was abnormal, and passed far from those the law made his heirs and legal kindred. His will is in precise accordance with the tenor of the testator's entire life. The law does not permit me to set aside the will of the erring as a punishment for their moral errors. A surrogate has no such extended jurisdiction.

In view of the facts established in this proceeding, I feel constrained to pronounce for the will. My sentence, therefore, is that the paper writing propounded as the will of Charles Klinzner, deceased, is entitled to probate as the will of real and personal property of Charles Klinzner, deceased. Let such a decision and decree be submitted to me for my signature. The proponents and the guardians of the infants are entitled to costs out of the estate. I impose no further costs in this proceeding.

Decreed accordingly.

Surrogate's Court, Kings County, April, 1911.

[Vol. 71.

In the Matter of the Application of SARAH E. STEWART and MARY STEWART TALLCOTT (Formerly MARY E. STEWART), as Administratrices of the Estate of HORATIO S. STEWART, Deceased, for the Disposition of the Real Property of Said Decedent for the Payment of his Debts.

(Surrogate's Court, Kings County, April, 1911.)

Executors and administrators - Subjectton of realty to payment of debts and liabilities of estate - Matters and proceedings after order, sale and conveyance - Confirmation - Not required.

con

There is no warrant for confirmation of a sale of decedent's lands for the payment of his debts, notwithstanding the word firmation" was inadvertently left in section 2774 of the Code of Civil Procedure, when former section 2776 of said Code, which required an order confirming the sale, was repealed in 1904.

MOTION to confirm a sale of decedent's land for payment of debts.

McKeen, Brewster & Morgan, for motion.

KETCHAM, S. There is no warrant for confirmation of a sale of decedent's lands for the payment of his debts. Former section 2776 of the Code of Civil Procedure, which required an order confirming the sale, was repealed, in 1904, by the act which reformed the practice relative to the sale of decedent's lands. Laws of.1904, chap. 750.

It is not possible that a procedure thus deliberately excluded was impliedly preserved by the incidental reference which was unfortunately left in section 2774 of the Code. That section, in like manner, retained the provision that “a freeholder appointed to execute the decree" should not purchase at the sale, although the statute of 1904 left out the express direction, formerly contained in the Code, that a freeholder should be appointed. As well might it be argued that the present statute, by implication and accident, requires or permits the appointment of a freeholder to conduct the sale as that confirmation is required because the word "confirmation" escaped the process of revision.

Motion denied.

Misc.] Surrogate's Court, St. Lawrence County, April, 1911.

In the Matter of the Judicial Settlement of the Account of ALVA J. RUNIONS, as Administrator of the Estate of GEORGE B. HARPER, Deceased. In re Claim of FRED H. LADD.

(Surrogate's Court, St. Lawrence County, April, 1911.)

Evidence - Documentary evidence-Books of account- - Verification of
books of account.
Executors and administrators - Debts and liabilities of the estate
Exhibition, establishment, allowance and enforcement of claims —
Determination on accounting- Costs.

Where, upon the hearing of a rejected claim for services rendered and medicines furnished to the decedent by the claimant as a physician, the correctness of the physician's book of accounts was proved by the testimony of third persons who had settled with him from the book during the period covered by the claim in question, the book itself is competent evidence though the entries therein were made by the claimant.

Where the claim was entirely rejected by the administrator who offered no evidence to show that the claim was not in every respect correct and reasonable, the claimant should be granted an allowance of costs in addition to his disbursements.

HEARING of a claim for physician's services, upon the judicial settlement of an administrator's accounts.

Clarence S. Ferris, for claimant.

George A. Adams, for administrator.

HERRIMAN, S. This claim was presented to the administrator and entirely rejected by him, and now comes before me under the stipulation of the parties, as provided in section 1822 of the Code of Civil Procedure.

The claim is for services rendered and medicines furnished to the decedent by the claimant as a physician, and amounts to $243.50. The rendering of the services was abundantly proved by the claimant's book of accounts, if such book was properly received in evidence. This book

Surrogate's Court, St. Lawrence County, April, 1911. [Vol. 71.

was produced by the claimant and identified by him as his book of accounts. He testified that he made the entries in it, and that he so made them at the time the transactions referred to occurred, and that he kept no clerk. He then proved by others that some of the services charged for were rendered, that some of the medicines charged for were delivered, that the amounts charged were reasonable, and that he kept correct books, the latter fact being shown by the testimony of several persons who had settled with him from the book during the period covered by the account in question, that their accounts upon the books were shown to them, and that they found them correct. The main objection now urged by counsel for the administrator is that the book was incompetent as evidence against the estate of the decedent, by reason of the provisions of section 829 of the Code of Civil Procedure; and he cites Davis v. Seaman, 64 Hun, 572, in support of his contention. In that case the only evidence. that the claimant kept correct books was his own testimony, given under objection and exception.

In short, the plaintiff merely produced his own record of his dealings with the decedent and then swore that the record was correct. In the case at bar, the correctness of the claimant's book of account was proved by the testimony of third persons. The book itself is not then incompetent evidence merely by reason of the fact that the entries in it were made by the claimant himself. Any other rule would render it impossible in the majority of cases to establish a claim against an estate, where the claim consists of many items of goods sold and services rendered.

No good reason is shown for the entire rejection of this claim by the administrator; and, while each step in the proof of the claim was resisted by him, no evidence whatever was offered to show that the bill was not in every respect correct and reasonable. Under these circumstances, I think that an allowance should be made to the claimant of twentyfive dollars costs, in addition to his disbursements.

A decree may be drawn in accordance with the foregoing.

Decreed accordingly.

INDEX.

ABATEMENT AND REVIVAL.

Death of party-What causes of action survive Causes of action
for personal wrongs · Violation of right of privacy. A cause of action
for violation of the right of privacy, under sections 50 and 51 of the
Civil Rights Law, is personal in its character and does not survive the
death of the person to whom the statute gives it. Wyatt v. Hall's
Portrait Studio, 199.

ABUTTING OWNERS.

Rights and liabilities in general -- Extent of abutting owners' rights
in streets. A provision of a contract, granting to defendant at a
monthly rental for a definite term a permit for a private hack stand
in front of plaintiff's restaurant in the city of New York, that defend-
ant would maintain a taxicab starter from six P. M. to six A. M., is
a mere detail of the business; and where neither from the contract
nor from the surrounding circumstances any inference can be drawn
that the plaintiff's "all night" license was regarded by the parties
as the basis of the contract, the expiration of the license and the
refusal of the city to renew it will not terminate the contract. The
contract between plaintiff and defendant was not illegal because it
attempted to give a lease of a public street. Abbaye v. United States
Motor Cab Co., 454.

ACCUMULATION.

What is an Effect of invalidity. Penniman v. Howard, 598.

ACTIONS.

The

1. Cause of· Liability of employer for payment to creditor of em-
ployee. The remedy provided by section 1391 of the Code of Civil
Procedure, against a person or corporation who, having money earned
as wages by a judgment debtor, neglects or refuses to pay over the
percentage of his wages which the law prescribes, is a distinct, sepa-
rate and new cause of action in favor of the judgment creditor.
Supreme Court has jurisdiction of an action to enforce the remedy
provided by said section, though the judgment against the judgment
debtor was recovered in the County Court. No provision of law re-
quires the judgment debtor to be made a party defendant to such
an action. Van Wie v. Delaware & Hudson Co., 25.

2. Cause of Liability of employer for payment to creditor of em
ployee Construction of statute.- To entitle a person holding an
assignment and note for advances of money or a loan on account of
wages to maintain an action against the employer under the provisions
of chapter 77 of the Laws of 1904 (now section 42, Personal Property
Law), it is not enough that notice of lien with a copy of the written
assignment of wages, executed under the same power of attorney under
which the note was signed but long afterward, should be served upon
the employer, but a copy of the note should have been served with
such notice. The period of three days mentioned in the statute began
to run when the note was made under the power of attorney and the
money was advanced and not when the written assignment of the
wages was made, long afterward. A power of attorney authorizing
the execution of an assignment of wages for the purpose of procuring
a loan does not authorize the execution of such an assignment to
secure the payment of a loan already made. An action upon an assign-

« EelmineJätka »