Lythgoe v. Smith — 55 N.Y. St. Rep. 828

Majority

p. 828

Mark Lythgoe, Pl’ff, v. Jane Smith, Impl’d, App’lt, Sylvester L. H. Ward, Referee, Resp’t.

(Court of Appeals,

Filed December 19, 1893.

Headnote

Attorney—Power or.

Where application is made to the court for authority to a referee to make payment upon a power of attorney, duly authenticated and acknowledged, of a foreign heir, where the identity of the person making it is not disputed nor the facts contradicted, and there are no suspicious circumstances surrounding the application, it is the duty of the court to authorize and direct payment as provided for in the power, and a refusal to make such direction is the denial of a legal right.

Appeal from order of the supreme court, general term, first department, affirming order directing the referee to pay the share of Jane Smith in the proceeds of the real estate sold to the chamberlain of the city.

The plaintiff commenced this action for the partition of certain real estate in the city of New York, of which one James Linden died seized. The defendant, Jane Smith, was a devisee of a portion of the real estate of which the testator died seized, and was called Jane Lego in -his will. The plaintiff obtained an order for the service of the summons upon her by publication, as a nonresident of this state, she being a resident of the city of Aukland, in the colony of New Zealand.

The judgment roll in the action contains- an affidavit, properly authenticated, proving the actual personal service of a copy of the summons and complaint upon Mrs. Smith at Aukland, on the 17th of November, 1891. The attorney for Mrs. Smith, who appeared for her in this action, makes an affidavit in which he says that after the service of the summons and complaint upon her, the defendant, Mrs. Smith, immediately sent the same to him. A hearing or trial of the action was had, and upon the trial the „ plaintiff was sworn, and said he had had a letter from Mrs. Smith "from Aukland about two months before that time; that he had

p. 829

frequently sent letters to her, and that she was his sister, and that he addressed the letters to her as Jane Smith, Aukland, and put a street address upon the letter, but that he had then forgotten it. A portion of the testimony of Jane Smith, taken in another action before the United States consul in Aukland, was read in evidence in the case without objection. The referee herein found that Jane Smith was the half sister of the deceased testator, Linden, and was named in the will as Jane Lego, and is now the wife of Eichard Smith, and resides in Aukland, New Zealand.

Judgment for a sale of the premises sought to be partitioned was finally entered, and the. real estate was sold under decree of sale, and the share of the defendant, Mrs. Smith, in the net proceeds of the sale was found and determined to be $16,347.49. The referee has paid to the attorney at law for the plaintiff his share of the proceeds of the sale.

It also appears that there has been considerable litigation concerning the subject of this action, and the attorney for Mrs. Smith received from her and her husband a full power of attorney for them and in their name to, among other things, receive the money belonging to Mrs. Smith or her husband under or by reason of the said will. The attorney says he has acted upon such power of attorney ever since he received it in 1890, and he has been in 'constant and uninterrupted communication with Mrs. Smith through her representative in Aukland, and he says she is over seventy years of age, and in his judgment she is unable to take a long sea voyage.

This power of attorney was produced, and appears to have been signed, sealed and delivered by Mrs. Smith and her husband in presence of the United States consul at Aukland, and acknowledged before him by both of them, and he certified that he read the paper over to her and that she understood the same, and that they were both personally known to him and known to be the same persons who executed the power. This certificate was signed by the consul and authenticated by the seal of the consulate.

After the referee had sold the premises and received the money, the person named in such power of attorney, being also the attorney at law for the defendant, Mrs. Smith, in this action, produced the power of attorney before the referee and asked him to pay over the money belonging to Mrs. Smith to him as attorney in fact and as a person duly and properly authorized to receive the same for her. The referee, while not denying any of the facts above set forth, did not admit them. He, therefore, made a certificate stating that he was unwilling to take the responsibility of paying over the money on the faith of this power of attorney and he asked the direction of the court. Upon that certificate an order to show cause was granted requiring the defendant, Mrs. Smith, or her attorney, to show cause why the referee should not be directed to pay Mrs. Smith’s share into court, or to pay it to the chamberlain of the city of New York. Upon the hearing of the motion the facts above stated appeared, and the power of attorney was again produced and, together with the affidavit of Mrs. Smith’s attorney, was filed. The court directed the sum to be

p. 830

deposited with the chamberlain of the city of New York, and that his receipt should be sufficient to discharge the referee. It was further ordered that Mrs. Smith, or her attorney in fact, or any other person making claim thereto, might apply to the court, at the foot of the decree or otherwise, to establish any right or claim which they may have in the fund or in any part of it.

Mrs. Smith, through her attorney at law, appealed from this order to the general term of the supreme court, where the order was affirmed, and from the order of affirmance an appeal has been taken to this court.

Isaac N. Miller, for app’lt; Sylvester L. H. Ward, for resp’t.

The power of attorney was duly proved in this proceeding. Code Civ. Pro., §§ 935, 937; 1 Eev. St., 757, § 6, as amended by chap. 80, Laws of 1883. It was ample authority for the payment of the money to the person named therein as attorney in fact. That person produced it and made the demand. The judgment provided for the payment of the money to Mrs. Smith or to any one whom she might legally and properly authorize to act for her.

Upon all the facts of this case, which are uncontradicted and which are above stated, we fail to see anything which would justify a court in refusing to direct a payment to be made on this' power. The court has ordered the money to be deposited with the chamberlain, and such deposit necessarily results in the further expenses of the chamberlain’s fees and fees to counsel for taking proceedings to obtain payment from the chamberlain. This added expense should be avoided if it can reasonably be done We are unable to see what more proof the defendant, Mrs Smith, could produce unless she came over in person.

Upon the uncontradicted facts as they appear there can be no rational doubt that the Mrs. Smith who signs the power of attorney, is the same Mrs. Smith who appears as defendant in this action. It cannot be doubted that she understood the nature and purpose of the power. Its authenticity is fully proven and is not denied. What more could be done to establish the right of the person named in the power to receive the money ? If it be said a later power should be proved, it may properly, as we think, be asked, why ? The present one is a full and' complete authority, and by the proof it is clear it was made with special reference to litigation about this very property and to the fact that moneys belonging to Mrs. Smith might be paid in actions at law, and the attorney was specially authorized to give receipts and acquittances therefor. Since the execution of the power it has been acted upon by the attorney, and he has been in constant communication with Mrs. Smith through her representatives at Aukland, and the plaintiff, but two months before his examination in this case, had himself received a letter from the defendant, his sister, and there is no assertion or suspicion of her death so far as this record shows. Being sufficient when given, and there being no assertion or anything to arouse suspicion of death or that the grantor óf the power has withdrawn or in any manner revoked it, why

p. 831

should another be demanded ? By the time it would reach this country and the money demanded and paid under it, Mrs. Smith might at that moment be dead. Such a possibility of death must of course exist under any circumstances, but all action cannot be suspended by reason of it. The bodily presence of Mrs. Smith to demand and receive her money ought to not to be exacted.

Where a power of attorney is produced to a referee, duly authenticated and acknowledged, it may be prudent to obtain the sanction of the court to recognize and make payment thereon, but when application for such authority is made and the facts appear as in this case, and they are wholly uncontradicted, and there are no suspicious circumstances surrounding the application, we think it is the duty of the court to authorize and direct the payment as provided for in the power, and the refusal to make such direction is the denial of a legal right

We should undoubtedly refuse to interfere with the order of the court below in any case where the material facts were not in substance admitted, or where there was any ground for suspicion regarding the power or the manner of its procurement In this case we think the attorney made out a legal right to receive the money.

The order must, therefore, be reversed and an order entered directing the referee to make the payment to the attorney in fact upon the production of the power of attorney and filing the same with the referee. Ho costs allowed to either party.

All concur.