Lawrence v. Church — 35 N.Y. St. Rep. 956

Majority

p. 956

Roxanna H. Lawrence, individually and as Ex’rx, and George Sherman, as Ex’r, Resp’ts, v. Walter S. Church, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

Compromise—Considebation—Pleading.

The complaint herein alleged the pendency of an action upon notes given by defendant to plaintiffs’ testator; that an agreement was entered into by which defendant was to pay all debts allowed or legally established against the estate, together with a certain sum to Mrs. Lawrence, and was to have the benefit of certain notes and mortgages belonging to the estate, or the proceeds thereof after payment of the expenses of collection and settlement of the estate, the action to be thereupon discontinued; that defendant.failed to pay certain sums set forth, which he was obligated by the agreement to pay, and demanded judgment for such sums. On demurrer, Held, that the complaint stated a cause of action; that the agreement was based on a good consideration, mutual promises.

Appeal from an order and interlocutory judgment overruling demurrer on the first ground therein stated.

Richardson & Robbins, for app’lt; J. H. & C. W. Stevens, for resp’ts.

J.—Judson W. Sherman died at Angelica, in the county of Allegany on the 12th day of November, 1881, leaving a last will and testament, by which he appointed the plaintiffs executrix and executor. The will was duly admitted to probate.

The defendant, Walter S. Church, became indebted to the deceased in his lifetime on promissory notes in a large amount and at the time of the death of the testator there was unpaid upon the notes more than $11,000. The executrix and executor of the will brought an action against Church to recover the amount so remaining unpaid. While the action was pending, the following agreement was executed:

“ Stipulated, that Walter S. Church will pay all the debts allowed or legally established against the estate of the deceased, including the mortgage and liens on the real estate of said deceased at the time of the death of said deceased.

2. That said Walter S. Church, defendant as aforesaid, will pay to Eoxanna Lawrence aforesaid, the sum of $3,000, in such manner as will be acceptable to her.

3. That said Walter S. Church shall have the benefit of the Thomas J. Chew, Jr., notes and mortgages now belonging to the estate, or the proceeds thereof, if any, after paying the expenses and commissions such as are legal and proper in collecting said mortgage and settling and administering upon the estate. The said Eoxanna Lawrence to have the use during her natural life of the house and lot where she lives, according to the will; she to release to George and William Sherman her life estate in the vacant lot, and said George and William to have the said house and lot subject to the life estate of said Eoxanna. When this is all done this action to be discontinued and the notes surrendered. W. S. Church.

Eoxanna H. Lawrence,

Administratrix of J. W. Sherman Estate.”

p. 957

The defendant failed to perform the conditions of the agreement, and this action was brought to recover the sum of §3,660 with interest, on account of moneys which should have been paid by the defendant under the contract. The complaint alleges the pendency of the action to recover the amount unpaid upon the notes; also, the making of the contract. The complaint then sets out the various sums which by the agreement the defendant was under obligations to pay, which he had not paid, a request of payment and refusal, and judgment is demanded accordingly.

The defendant demurred to the complaint upon various grounds, the first of which was : “ That the complaint does not state facts sufficient to constitute a cause of action.” The second and third, that causes of actions were improperly united, and the fourth, that there was a misjoinder of parties plaintiff in this, tó wit: “ That the plaintiff, Boxanna H. Lawrence, as executrix, and Greorge Sherman, as executor of the last will and testament of Judson W. Sherman, deceased, have no. interest in the alleged cause of action for three thousand dollars in favor of the plaintiff, Boxanna H. Lawrence, individually; also, in this, to wit: That the plaintiff, Boxanna H. Lawrence, individually, has no interest in the alleged cause of action for six hundred and sixty dollars in favor of the plaintiffs, Boxanna H. Lawrence and Greorge Sherman, as executrix and executor of the last will and testament of Judson W. Sherman, deceased.”

The demurrer was overruled as to the first, second and third grounds, and sustained as to the fourth, with costs to the defendant, with leave to the plaintiffs to amend. An opinion was written by the justice at special term which appears in the case.

The defendant appealed from that portion of the order and interlocutory judgment which overruled the demurrer on the first ground, so that the only question before the court is whether the complaint states a cause of action. That it does so is very clear. The agreement shows mutual promises; a good consideration.

The following cases illustrate the rule: Carstens v. Schmalholz, 29 N. Y. State Rep., 493-494; Davis v. Spencer, 24 N. Y., 386 -390; Morehouse v. Bank, 98 id., 503 ; Wahl v. Barnum, 117 id., 95, 96; 26 N. Y. State Rep., 457; McCreery v. Day, 23 id., 777; Kirtz v. Peck, 113 N. Y., 222 ; 22 N. Y. State Rep., 733; Deen v. Milne, 113 N. Y, 303 ; 22 N. Y. State Rep., 620.

The order and judgment appealed from must be affirmed.

Dwight, P. J., and Macomber, J., concur.