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Fisher v. Filon

69 N.Y. St. Rep. 638 Court N.Y. Gen. Term Decision date 1895-10-16 English

Delivered by Bradley, J.

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p. 638
James S. Fisher, Resp't, v. Mary E. Filon et al., as Executors, etc., App’lts.
(Supreme Court, General Term, Fifth Department,
Filed October 16, 1895.)

Headnote

Executobs—Disputed claim.
Where no request is made for a more specific statement of a claim against a decedent’s estate, evidence in its support will not he stricken out, on the ground that such statement is too general.
Claim by James S. Fisher against Mary E. Filón, John M. Davy and Platt B. Yiele, as executors of Michael Filón, deceased, as follows:
“ Estate of Michal Filón, Deceased, to James Fisher, Dr.
“ To investing $19,400, legal services and correspondence connected therewith, and disbursements since 1888,
being 5 per cent............................... $970 00
Credit account Peters interest received............... 45 05
“Dated November 1, 1895.”
$924 95
The matter was referred, pursuant to the statute. Appeal from a judgment entered upon the report of a referee.
Cassius 0. Davy, for app’lts ; W. A. Sutherland, for resp’t.

The testator died in July, 1893. The claim was exhibited to the defendants in December, 1893, and referred in November, 1894. The plaintiff was an attorney and counselor at law. The referee found, as facts: That in or about 1888 Michael Filón retained and employed the plaintiff to invest for him about $20,000 in Western mortgages, and promised to pay the plaintiff a reasonable compensation therefor. That the plaint-tiff did so invest $19,400, and afterwards, from 1888 to the time of the death of the testator, at his request, took charge of the collection of the interest on the mortgages ; attended to the payment of the taxes and the redemption of the mortgaged lands from tax sales; rendered services and gave advice, as attorney and counsel, in matters relating to the investments, and conducted voluminous correspondence required in and about the business relating to them. And that his services were reasonably worth $970.

The plaintiff presented no claim for any of the services in question to Mr. Filón, during his life; and no account of the services was produced, nor was evidence of the value of them, in detail, given at the trial. It is therefore urged that the - measure of proof requisite to establish the claim was not furnished by the evidence. It is true that a claim presented against the estate of a deceased person is properly the subject of critical inquiry, and

p. 639
recovery should not be allowed unless it is supported by very satisfactory evidence. Kearney v. McKeon, 85 N. Y. 136 . There is evidence to the effect that the testator employed the plaintiff to make the investments for him, and tending to prove that he intended to pay him for the services; that the plaintiff made the investments, and attended to the business which followed, relating to them. This included the collection of interest and payment of taxes, so far as it became necessary for the protection of the mortgage liens upon the property. He gave some attention to foreclosure of mortgages, and conducted quite an extensive correspondence in and about the business. The only evidence of the value of the services was that given in bulk by the plaintiff. This evidence did not embrace within its import any personal transactions with the decedent. The exception to its reception was not well taken.

The statement of claim, as exhibited to the defendants, is, in terms, quite general. It did not very definitely advise them of the nature of the legal services, otherwise than that they related to the matters of the investments. All the services which the evidence tended to prove were performed had that relation. They therefore came within the import of the statement of claim. It does not appear that the defendants required the exhibition to them of a more specific statement of the plaintiff’s claim. There was no error in the denial of the motion made at the close of the evidence, to strike out that given in relation to the services of the plaintiff.

The fact which the defendants sought to prove—that the plaintiff received payment, by way of commission, from the Western companies through which some of the investments for Filón were made—wciuld, if established, present a serious objection to his claim for services in making the investments. But the evidence, as the referee held, failed satisfactorily to show that the plaintiff had any relation, in the business, to those companies, inconsistent with the relation to Mr. Filón in the performance for such services.

The contention that the recovery was partially barred by the statute of limitations is answered by the statute which excludes eighteen months from the time within which an action may be commenced against the personal representatives of a deceased person against whom a cause of action exists at the time of his death. Code Civ. Proc. § 403.

The evidence relating to the matter of the plaintiff’s claim for services, and to the value of them, presented questions of fact within the province of the referee to determine, and his conclusion is. fairly supported by the evidence. There was no error in the rulings at the trial. The judgment should be affirmed. All concur.

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