Dunckel v. Failing — 24 N.Y. St. Rep. 374

Majority

p. 374

Ella L. Dunckel, App’lt, v. Ephraim Failing et al., Executors, Resp’ts.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

Promissory notes—When void for want of consideration.

One Harmon Dunckel obtained a policy of insurance on his life, payable to his mother, defendant’s testatrix, to whom he was indebted He died, and she received the insurance money. Dunckel had no property and owed plaintiff a certain sum. Plaintiff’s father, who acted for his daughter, applied to defendant’s testatrix telling her it was hard that plaintiff should lose the whole amount due her from Harmon, and thereupon defendant’s testatrix gave the note in suit payable after her death. Held, that the note was without consideration.

Appeal from a judgment entered upon the report of a referee, and from an order denying a motion for a new trial.

D. S. Morrel, for app’lt; L. M. Weller, for resp’ts.

One Harmon Dunckel, about a year or so before his death, obtained a policy of insurance on his life, payable to Elizabeth Dunckel, his mother, defendant’s testatrix, to whom he was indebted. He died in 1879, and she received the insurance money, $2,-000, a few months afterwards. He had no property and was in debt. He owed the plaintiff $1,250, which she could not collect.

Peter A. Dunckel, father of plaintiff, says he was authorized to act for his daughter; that she made a claim against Elizabeth Dunckel (now deceased) for money due her; and that he told Elizabeth Dunckel it was hard for plaintiff to lose the whole amount; that Elizabeth said she would give a note of $550; that accordingly she gave the note in suit, dated May 30, 1884, for that amount, payable six months after her death, to plaintiff or bearer, with interest:

Some of the assessments on the policy of insurance were paid by Elizabeth. It does not appear how much was paid by Harmon.

It was held by the referee and by the learned justice'that the note was without consideration.

The plaintiff now insists that it was valid, because given in compromise of a disputed claim. So far as we can see, the learned justice was quite correct in saying that this was in fact only a claim on the good nature of Elizabeth. It is

p. 375

evident that there is nothing to compromise where there is no claim of legal obligation. And we fail to see any proof of any legal claim. No facts are shown on which to base sach-a claim. Harmon’s debt to plaintiff did not constitute a claim against Elizabeth. Something was argued of the wrong done to. Harmon’s creditors by his payment of premiums. There is no proof that he paid any. Some were unpaid at his death. Furthermore, as he owed Elizabeth, there seems to have been no fraud in his attempting to .secure her by this policy. It was a just and proper act in him to secure a creditor in this way. And that act furnished no ground of complaint, so far as we discover, on the part of another creditor.

We think that the judgment should be affirmed, with •costs.

Landon and Ingalls, JJ., concur.