Kahnweiler v. Smith — 6 N.Y. St. Rep. 241

Majority

p. 241

David Kahnweiler, Resp’t, v. Andrew J. Smith, as Ex’r, etc., App’lt.

(New York Court of Common Pleas, General Term,

Filed February 7, 1887.)

Headnote

1. Evidence—When affidavits admitted to prove ownership.

In an action brought to recover a balance due upon an account for goods sold and delivered to defendant’s testator for the use of a certain steamer alleged to have been owned by testator, affidavits in regard to the ownership of said vessel filed in the custom house, may be admitted in evidence as declarations by a party in interest to offset his own statement or that of his legal representative.

3. Same—Exception—When too general.

The objection to the admission of said affidavits in evidence as incompetent was too general to avail the appellant on this appeal.

3. Executor and administrator—Costs—When chargeable with.

The circumstances of this case do not show such a presentation of the claim and refusal of its payment, or to refer it by the executor, as to make the estate chargeable with costs.

Appeal from a judgment on the verdict of a jury in favor of the plaintiff in an action for the value of certain goods sold and delivered to the defendant’s testator, for the use of a certain steamship, which he was alleged to have owned.

This action was brought to recover a balance due upon an account for goods sold and delivered to Alexander M. 0. Smith in his lifetime, for the use of certain steamers alleged to have been owned by him. The defendant claims that the sale and credit was not given to the deceased, but to his brother, Philemon H. Smith. Alexander died after the goods had been delivered. During his life he had two brothers, namely: Andrew J. (this defendant) and Philemon H., who superintended and managed his business. The testimony shows that an order for the articles in question was received by the plaintiff. This was supplemented by a letter signed A. M. C. Smith per P. H. Smith.

It further appeared from plaintiff’s testimony that he had had dealings with A. M. 0. for a number of years, and that his business transactions during all that time had been with him personally.

There was no oral evidence offered by P. H. Smith to dispute plaintiff’s claim, but documentary evidence was offered showing that at about four months before the sale of the goods in question A. M. C. Smith had given power

p. 242

of attorney to this defendant authorizing him to dispose of the property of the deceased, real or personal. Under this power of attorney, dated February 17, 1883, but not recorded until May 22, 1885, a transfer of the steamboats involved in this litigation was made. The plaintiff avers that he never had any knowledge of this secret transfer.

In respect to the question of costs, it appeared from the affidavit of the plaintiff presented on his application for costs, that he presented his claim on or about August 25, 1883, that he saw the defendant about May, 1884, and called his attention to his claim, and that he admitted the claim was good and promised to pay it as soon as the estate could realize some money out of sales. That he presented his claim with vouchers, duly verified, May 3, 1885, and that the defendant never disputed or questioned the claim until September 5, 1885, when he notified plaintiff that he refused to refer it. In his answering affidavit the defendant stated that letters testamentary were issued to him October 10, 1883, that he had no recollection of ever seeing; any bill from plaintiff, and that no one on August, 25,1883, was authorized to receive any claims against the estate, and that the time to present claims expired October, 28, 1884, and denied any presentation in May, 1884, or any until September, 1885. The trial judge certified that the claim was presented to defendant within the time limited, that defendant unreasonably resisted payment and awarded costs against the defendant as executor.

Kurzman & Yeaman, for resp’t; Butler, Stillman & Hubbard, for app’lt.

A clear question of fact was raised by the testimony and fairly submitted to the jury, whether Philemon H. Smith was the agent of A. M. C. Smith in the transactions above referred to. Upon this point, a verdict of the jury is decisive. The long interval of time that elapsed between the transfer of the boats and its public record, was at least a matter of suspicion and the jury had a right to take that fact into consideration in adjudicating the rights of the parties.

The only exception in the case that appears to deserve consideration is that certain affidavits in regard to the ownership of the vessels were produced from the custom house. The objection to this evidence was that it was incompetent. This objection was too general in its character to avail appellant upon this appeal. The specific ground of the objection was not stated. If it had been the respondent might have so framed his question and avoided the objection. Moreover an affidavit of ownership in a question of liability of this character, might well be held as a declara

p. 243

tian by a party in interest to off-set his own statement, or that of his legal representative in an action of this nature.

After examination of the testimony and the authorities cited in support of the claim, I do not think that costs should be awarded against the executor in this action. It is not shown that there was such a presentation of the claim and refusal of its payment or to refer it as to make the estate chargeable with costs.

To this extent the judgment should be modified and as modified affirmed.

Allen and Bookstaver, JJ., concur.