Painter v. Fletcher

Headnote

Contract — moneys deposited with defendant’s testator to insure payments to him of fifty per cent of indebtedness of a bankrupt firm — action to recover amount received in excess of said percentage — defense of illegality of contract.

Painter v. Fletcher, 189 App. Div. 165 , affirmed.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered December 1, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court upon a special verdict answering certain questions submitted to the jury. The action was brought to recover moneys of the plaintiff received by the defendant’s testator, Henry J. Braker, under a written contract dated May 9, 1905, between the plaintiff and Braker, by the terms of which he received $156,849.39, the proceeds of a sale of certain of the plaintiff’s real estate “ to insure to Henry J. Braker the payment of fifty per cent of the just indebtedness of Ellingwood & Cunningham (a. Stock Exchange firm which had assigned for benefit of its creditors) to him with interest,” he agreeing to repay to the plaintiff any moneys received by him in excess of fifty per cent of the “ just indebtedness,” with interest, up to the amount so received from her. The contract sued on and all facts relating to the indebtedness and the payments received thereon by Braker, and by the defendant as his executor, were either admitted or not in dispute. The only issues of fact were those raised by separate defenses claiming illegality of the contract and the bar of the Statute of Limitations.