Gescheidt v. Drier — 44 N.Y. St. Rep. 481

Majority

p. 481

Albert F. Gescheidt, Ex’r, App’lt, v. Frederika Drier et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

-Contract—Mortgage—Services.

Plaintiffs testatrix, who was the aunt of defendant and held mortgages made by her, agreed that if defendant would take care of her in future sicknesses and pay the interest on one mortgage, both of them should belong to defendant at her death. The services were performed and interest paid as agreed. Held, that the contract was good.

Appeal from judgment dismissing the complaint and directing the cancellation of record of two mortgages.

L. G. & W. P. Platt, for app’lt; Wilson Brown, Jr., for resp’ts.

The plaintiff is the executor of Eva Schmitt. The defendant Frederika Drier on the 81st of May, 1887, executed and delivered to the deceased testatrix a bond and mortgage for $2,000. Subsequently on the 13th of August in the same year .she executed and delivered to her. another mortgage for $160. Eva Schmitt died the 4th of August, 1890, having in her possession at the time of her death both bonds and mortgages. The plaintiff seeks to collect these by foreclosure and sale of the mortgaged property. The evidence shows that Frederika Drier was a niece of the deceased. This niece had been on friendly terms with the deceased and had rendered services to her in sickness. The answer avers that after the making of the bonds and mortgages the parties made an agreement that if the mortgagor should -attend to and take care of the mortgagee when she was sick in the future and pay the interest on the $2,000 as long as the mortgagee lived, the mortgages, both of them, when she died should belong to the mortgagor. That no interest was to be paid on the $160 bond and mortgage. This agreement is proven in part by Adelaide Herman, a witness for plaintiff, with whom the testatrix lived on two separate occasions. The agreement is fully proven by Katy Mathsson. It seems that there was an agreement that the testatrix should live in the house built with the money borrowed of her, $2,000 and $160; that after it was finished she -did not move in because she did not like Mr. Drier, but that that fact would make no difference ; that the niece must attend to her .and nurse her when sick, and after her death the house would be iree. This is fully proven by the witness Drier and Henry .Schmitt, by the witnesses Gibbard, Engle, Mr. and Mrs. Crowley .and Morris Burnstein. These several witnesses generally establish "that the niece either did or that the testatrix admitted a performance of the agreement on the part of Mrs. Drier.

The contract is good within the cases of Rhodes v. Rhodes, 3 Sand. Ch., 279 ; Hamer v. Sidway, 124 N. Y., 538 ; 36 St. Rep., 388 ; Smith v. Smith, 125 N. Y., 224 ; 34 St. Rep., 857 .

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs ; Dykman, J., not sitting.