Brown v. Coddington — 55 N.Y. St. Rep. 515

Majority

p. 515

Frank Brown, App’lt, v. Charles E. Coddington el al, Resp’ts, and Emily K. Bond, App’lt.

(Supreme Court, General Term, First Department,

Filed October 13, 1893.)

Headnote

Contract—Agreement not to partition.

In an action of partition the defense was that the heirs and administrators of an intestate entered into an agreement providing for the management of the estate for a certain time by the administrators, one of them to receive a certain commission for his services as attorney, and which contained a covenant that during the continuance of the agreement there should be no partition of the reales’ate. Held, that the agreement not to p irlition was valid and a good defense to the action.

Appeal from judgment dismissing the complaint.

Henry B. Weselman and A. J. Skinner (David McClure, of counsel), for app’lts ; A. B. Cruikshank, for resp’ts, Coddington;

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H. C. Henderson, for resp’t, Hayes ; Coddington & Cruikshank, for resp’t, Hennen ; James Bilger, for resp’t, Ryan; Lachman, Morganthau & Goldsmith, for resp’t, Siegman.

By this action it was sought to partition certain property of which Kathleen E. Brown was, at the time of her death, seised and in possession of. She died intestate, September 5, 1886, leaving the plaintiff, Frank Brown, and the defendants, Lily A. Gh Coddington and Emily K. Bond, her children, as her only heirs at law and next of kin. The trial court held that the plaintiff had neither actual nor constructive possession, and dismissed the complaint. A few days after the death of intestate, Lily A. Gr. Coddington and her husband, Charles E. Coddington, were duly appointed administrators of the personal estate of said-intestate, and thereafter entered upon the discharge of such office. About the 10th day of October, following, the parties named entered into a tripartite agreement, in which the administrators were named as the parties of the first part, the heirs at law and next of kin of intestate as parties of the second part, and Charles E, Coddington party of the third part. After describing' the property of which intestate was the owner at the time of her death, and reciting that the property was incumbered with liens and claims for taxes, water rates, ground rents, bonds, mortgages and debts, declaring it to-be the belief of 'the parties that a sale or. division of the property would result in great loss, and, further, that the actual management of all of said interests should be had by one person, rather than by the acts of all the persons interested in said property, the agreement provided for the conduct and management of the estate in substance as follows:

The party of the first part and the party of the third part to act as the agent and attorney of all the other parties ; that a fund should be accumulated wherewith to pay liens, mortgages and debts, to accomplish which it was agreed that the parties of the first and third parts would not be required to deliver to any of the parties any of the property during the existence of the agreement, or to pay to either of them, in- any one year, a sum exceeding SI,200. The compensation of the party of the third part was fixed at five per centum on the moneys received. By the seventh clause it was expressly covenanted that no partition should be had during the continuance of the agreement. The tenth clause fixed the term of the agreement at eight years from the date of the instrument, unless cancelled by the written consent of all the parties of the second part, or until the death of the party of the third part, or his refusal to act further in the matter, either of which events should terminate the agreement. At the time of the com men ce- ' ment of this suit neither of these events had happened. The parties of the first andjffiird parts at once entered upon the performance of the obligations assumed by the agreement, and were so continuing at the time this suit was begun, September 12, 1880. Paragraph 7 of the amended complaint alleged “ that the said defendant Charles E. Coddington has been in the possession and control of said premises, and collecting the rents thereof, under an

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.alleged authority claimed by him to be conferred,” by the instrument in writing to which reference has already been made ; and .as to it the complaint further averred “that in truth and in fact this plaintiff was wholly uninformed as to the contents thereof when he signed the same, and the same is not, and never was, a binding obligation on this plaintiff.” His assertion of lack of knowledge of the contents of the agreement was not borne out by the testimony on the trial. The references so far made to the contract establish its mutuality, and the agreement therein containéd, “that it is now expressly covenanted and agreed that no partition whatever of such real estate shall be had during the continuance of this agreement without the written consent, previously given, of the'said party of the third part,” has sufficient consideration to support it.

But the appellant contends that the agreement not to partition during the existence of the contract does not constitute a legal defense to this action commenced while it is still in force; his position being that it is in effect a contract not to sue fora limited time, and therefore not pleadable either in bar or abatement to this suit, within the rule asserted in Chandler v. Herrick, 19 Johns., 129 , and Winans v. Huston, 6 Wend., 471 . Those cases, as well as the other leading cases, both in England and this country, were carefully examined and considered by the supreme court of Michigan in two cases, Robinson v. Godfrey, 2 Mich., 408 , and Morgan v. Butterfield, 3 id., 615, and a contrary conclusion reached. With the reasoning of the court in those cases we concur. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.