In re McGarvey

64 How. Pr. 135

• Court: New York Supreme Court
• Decided: May 15, 1882
• Status: Published

Opinion

Buchanan, Charles J., Referee.

It having been referred to me. to pass upon and adjust the several accounts and demands of ¡Robert Harrison, the petitioner herein, and to determine the amount justly due to him from George Dawson, as committee of the person and estate of Harry McGarvey, named in the petition of said Harrison, herein, I do hereby report herein as follows: “From September 11, 1880, to Hovember 10, 1880, both dates inclusive, Robert Harrison and Edward Yan Yalkenburgh were partners engaged in the business of buying and selling fish, oysters, clams and edibles, and were conducting a saloon, restaurant and bar at Ho. 782 Broadway, in the city of Albany, under the firm name and style of Harrison & Yan Yalkenburgh. Between said September eleventh and Hovember tenth, both inclusive, said Harrison and Yan Yalkenburgh advanced and loaned money to said Harrry McGarvey at his request, and on like request during said period sold and delivered to him at the city of Albany, certain goods, wares and merchandise, consisting of cigars, tobacco, meat, cheese, drinks, vegetables, oysters, clams, tongues, fish, bread, lobsters and pigs feet, amounting in all on Hovember 10, 1880, to $151.10; no part of which has been paid, though demand for payment thereof was, before the 23d of September., 1881, made upon both said McGarvey and said Dawson as such committee, and payment was refused. Of said sum of $151.10, sixteen dollars and ten cents were for drinks. There is no evidence before me that said drinks, or any of them were either strong or spirituous liquors or wines, or that said drinks or any of them were alcoholic or intoxicating wines or liquors (2 R. S. [6th ed.], p. 937, sec. 16). On December 7, 1880, an order was granted by this court, at a special term thereof, whereby said George Dawson was appointed the committee of the person and estate of the said Henry McGarvey upon his (said Dawson’s) filing with the clerk of said court a bond, with two sufficient sureties, to be approved of by a justice of said court, in the penalty of $18,000, and conditioned for the faithful performance of his trust as such committee according to the statute and the rules and practice of the court, said order and the inquisition taken December 18, 1879, attached thereto relative to declaring Harry McGarvey to be an habitual drunkard, were filed in the clerk’s office of Albany county, on the 7th day of December, 1880, and not till then. There is no evidence before me that said bond was ever filed as required by said order or otherwise; nor that the commission referred to in said inquisition was ever filed with the clerk or otherwise. Said Van Valkenburgh died July, 1881.

“ To the close of November, 1880, said McGarvey had and kept his bonds and mortgages himself. Towards the latter part of September, 1880, said Harrison assisted said McGarvey to make out vouchers for his (said McGarvey’s) stock. During the period that the said goods were sold and delivered to said McGarvey as aforesaid, he was in a condition to know what he was about, and to take care of himself.

“ As conclusions from the foregoing facts, I find and determine that there is justly due and owing to said Robert Harrison, as surviving partner of the firm of Harrison & Van Valkenburgh, from said George Dawson, as committee of the estate and person of said Harry McGarvey the sum of $151.10, with interest thereon from "November 10, 1880.”

The referee’s report wras confirmed, and an order was entered directing the committee to pay the sum found to be due, with referee’s fees and costs.