Cooper v. Brooklyn Trust Co.

Appellate Division of the Supreme Court of New York

Cooper v. Brooklyn Trust Co.

84 N.Y.S. 88, 87 A.D. 610

Appellate Division of the Supreme Court of the State of New York·Decided October 22, 1903·Published·Cited by 1 cases

Opinion

PER CURIAM.

We think that there should be a new trial. As the learned trial court said, the evidence put in by the plaintiff showed that the plaintiff had rendered services to the decedent outside of his duties as her courier, and that the decedent had promised payment therefor. We think that there was some evidence of the value of these services. The decedent deposited bonds in an envelope in her attempt to fulfill her promise. There were found in the envelope six bonds, each for $1,000. We think that such deposit of this amount may be regarded in the light of an admission that the services were reasonably worth that sum of money. The testimony as to the services, of the character thereof, of the promise to pay therefor, and of the deposit was received without objection under a complaint of services performed at the decedent’s instance and request and her promise of payment. It is true that the plaintiff not only alleges a promise and agreement to pay for the services, but a promise and agreement to make compensation therefor by will or otherwise, coupled with the allegation that the decedent did make provision for payment by the deposit. But it is not alleged that such deposit was performance, and the plaintiff, by thus pleading, does not elect to proceed as if upon a performance made by such act of deposit. The plaintiff does not plead that the bonds were his property, nor does he virtually take that position by seeking the recovery thereof. On the contrary, he declares upon the services, the promise to pay for the services, and the value thereof. We would not prejudge." But, as the evidence stood at the close of the plaintiff’s case, it is clear that the decedent intended to compensate the plaintiff for his services with six $1,000 bonds, and that her intention was not fulfilled by any change of purpose on her part. . The courts should not be astute to deprive the plaintiff of the trial of his claim by a jury.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

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PER CURIAM.

We think that there should be a new trial. As the learned trial court said, the evidence put in by the plaintiff showed that the plaintiff had rendered services to the decedent outside of his duties as her courier, and that the decedent had promised payment therefor. We think that there was some evidence of the value of these services. The decedent deposited bonds in an envelope in her attempt to fulfill her promise. There were found in the envelope six bonds, each for $1,000. We think that such deposit of this amount may be regarded in the light of an admission that the services were reasonably worth that sum of money. The testimony as to the services, of the character thereof, of the promise to pay therefor, and of the deposit was received without objection under a complaint of services performed at the decedent’s instance and request and her promise of payment. It is true that the plaintiff not only alleges a promise and agreement to pay for the services, but a promise and agreement to make compensation therefor by will or otherwise, coupled with the allegation that the decedent did make provision for payment by the deposit. But it is not alleged that such deposit was performance, and the plaintiff, by thus pleading, does not elect to proceed as if upon a performance made by such act of deposit. The plaintiff does not plead that the bonds were his property, nor does he virtually take that position by seeking the recovery thereof. On the contrary, he declares upon the services, the promise to pay for the services, and the value thereof. We would not prejudge." But, as the evidence stood at the close of the plaintiff’s case, it is clear that the decedent intended to compensate the plaintiff for his services with six $1,000 bonds, and that her intention was not fulfilled by any change of purpose on her part. . The courts should not be astute to deprive the plaintiff of the trial of his claim by a jury.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Cooper v. Brooklyn Trust Co., 84 N.Y.S. 88, 87 A.D. 610 (N.Y. Ct. App. 1903).

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Opinion

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