In re the Judicial Settlement of the Account of Joy

257 A.D. 1059, 1939 N.Y. App. Div. LEXIS 9050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1939
• Status: Published

Opinion

Appeal from a decree of the Surrogate’s Court of Washington county, entered January 5, 1939, dismissing the claim of appellant against the estate of deceased for the sum of $4,250 after a trial before the court. The appellant’s claim against decedent’s estate consisted of one-half of three items appellant alleged he had paid for the Piping Rock Corporation in which both he and decedent were stockholders and that decedent agreed to reimburse him to the extent of one-half of such payments. The first two items were for a carpet and architect’s fee for the gambling casino of the corporation, which items appellant contended he paid in 1928. The third item was for the corporation’s loss on gambling operations in the year 1930. Appellant attempted to establish an account stated, arising in September, 1932, and by that to toll the Statute of Limitations. There was no proof of any promise by the decedent to pay appellant these three items except such as might be inferred from the making out of the list of the items in deceased’s presence in 1932. The Statute of Frauds and the six-year Statute of Limitations were both good defenses. In addition all three items of the claim arose from gambling operations in which apparently the corporation, deceased and appellant were all engaged. Consequently, these transactions were illegal and there can be no recovery therefor. (See Restatement of the Law of Contracts, § 598; Reiner v. North American Newspaper Alliance, 259 N. Y. 250; Goodrich v. Houghton, 134 id. 115.) Decree affirmed, with costs. Hill, P. J., Crapser, Bliss and Heffeman, JJ., concur.