Franchi v. Tirelli

Appellate Terms of the Supreme Court of New York

Franchi v. Tirelli

92 N.Y.S. 784

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 21, 1905

StatusPublished

This text of 92 N.Y.S. 784 (Franchi v. Tirelli) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franchi v. Tirelli, 92 N.Y.S. 784 (N.Y. Ct. App. 1905).

Pincite

Opinion

BLANCHARD, J.

The complaint alleges, in substance, that the plaintiff sold certain goods to one Tirelli, who, before paying for them, died intestate. His widow, the defendant, was appointed the administratrix of the estate of the decedent, and continued to carry on the business in which he had been engaged. The plaintiff presented her claim to the administratrix, who agreed with her that, if she would not file and prove her claim against the defendant as administratrix, she (the defendant) would pay it herself out of the profits of her husband’s business, and from the proceeds of a policy which had been taken out upon the life of her husband. The plaintiff relied upon this agreement of the defendant, and therefore did not prosecute her claim against the estate. The defendant partly performed her agreement by paying the plaintiff about 12 per cent, of her claim, but has failed to pay the balance. It is to recover this balance that this action is brought. The defendant, as separate defenses, pleads, first, the statute of frauds; and, second, no consideration. The plaintiff demurs to these defenses as insufficient in law. The judgment sustains the demurrer to the first defense, and overrules the demurrer to the second defense, and also sustains the complaint, as stating facts sufficient to constitute a cause of action. From this judgment the .defendant alone appeals.

We are of the opinion that the complaint states a cause of action. The defendant had an individual interest in the property left by the testator, her husband, by virtue of the statute of distributions; and it was therefore for her benefit that the plaintiff, at her request, refrained from prosecuting her claim against the estate of which she was the administratrix. This forbearance on her part was sufficient consideration to support the defendant’s promise to assume the debt and pay it as an original obligation. The fact that she has partly performed this agreement by making a substantial payment upon it supports this conclusion.

The judgment should therefore be affirmed, with costs. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BLANCHARD, J.

The complaint alleges, in substance, that the plaintiff sold certain goods to one Tirelli, who, before paying for them, died intestate. His widow, the defendant, was appointed the administratrix of the estate of the decedent, and continued to carry on the business in which he had been engaged. The plaintiff presented her claim to the administratrix, who agreed with her that, if she would not file and prove her claim against the defendant as administratrix, she (the defendant) would pay it herself out of the profits of her husband’s business, and from the proceeds of a policy which had been taken out upon the life of her husband. The plaintiff relied upon this agreement of the defendant, and therefore did not prosecute her claim against the estate. The defendant partly performed her agreement by paying the plaintiff about 12 per cent, of her claim, but has failed to pay the balance. It is to recover this balance that this action is brought. The defendant, as separate defenses, pleads, first, the statute of frauds; and, second, no consideration. The plaintiff demurs to these defenses as insufficient in law. The judgment sustains the demurrer to the first defense, and overrules the demurrer to the second defense, and also sustains the complaint, as stating facts sufficient to constitute a cause of action. From this judgment the .defendant alone appeals.

We are of the opinion that the complaint states a cause of action. The defendant had an individual interest in the property left by the testator, her husband, by virtue of the statute of distributions; and it was therefore for her benefit that the plaintiff, at her request, refrained from prosecuting her claim against the estate of which she was the administratrix. This forbearance on her part was sufficient consideration to support the defendant’s promise to assume the debt and pay it as an original obligation. The fact that she has partly performed this agreement by making a substantial payment upon it supports this conclusion.

The judgment should therefore be affirmed, with costs. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

92 N.Y.S. 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franchi-v-tirelli-nyappterm-1905.