Laird v. Arnold

New York Supreme Court

Laird v. Arnold

32 N.Y. Sup. Ct. 4

DecidedJune 15, 1881

StatusPublished

This text of 32 N.Y. Sup. Ct. 4 (Laird v. Arnold) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Laird v. Arnold, 32 N.Y. Sup. Ct. 4 (N.Y. Super. Ct. 1881).

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Opinion

Smith, J.:

The action was brought to recover the price of a monument or tombstone, manufactured and furnished by the plaintiffs and erected by them over the grave of the defendant’s intestate and the intestate’s wife, at the request of the defendant, as administrator. It appeared at the trial, that after the tombstone was ordered, the defendant said that he had not the money to pay for it and requested the plaintiffs to take his note for it, which they did. At the close of the plaintiff’s testimony the defendant moved for a nonsuit on the ground that the receiving of the individual note of the defendant was payment; that there was no evidence that he contracted the debt as administrator; that the debt proved is one against the defendant personally and not as administrator; and that if any cause of action exists against the estate, it is an equitable one and not an action at law. The motion for a nonsuit was granted and the plaintiffs excepted.

In the case of Dalrymple v. Arnold, admr. (21 Hun, 110), which was an action against this same defendant, as administrator, for the price of the coffins in which the intestate and his wife were buried, we held that the funeral expenses of the intestate and those of his wife were a charge-upon his estate. The case of Patterson v. Patterson (59 N. Y., 574), was cited as authority. Reference was also had to section 1, title 4, chapter 6, part 2 of the Revised Statutes, as amended by chapter 267 of the Laws of 1874. Our decision was published after this cause was tried, and it is understood that in consequence of it, the learned judge who tried the cause, set aside the nonsuit. Adhering to that decision we hold that the defendant was liable as administrator, unless the plaintiff contracted with him solely in his individual capacity. There was some evidence tending to show that the defendant contracted as administrator, and for aught that appears, the note, which seems to [6]*6have been given subsequently to the making of the contract, was merely collateral to the original indebtedness. At least, the evidence on those points justified the plaintiffs request that the case be submitted to the jury.

The order should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from affirmed.

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Smith, J.:

The action was brought to recover the price of a monument or tombstone, manufactured and furnished by the plaintiffs and erected by them over the grave of the defendant’s intestate and the intestate’s wife, at the request of the defendant, as administrator. It appeared at the trial, that after the tombstone was ordered, the defendant said that he had not the money to pay for it and requested the plaintiffs to take his note for it, which they did. At the close of the plaintiff’s testimony the defendant moved for a nonsuit on the ground that the receiving of the individual note of the defendant was payment; that there was no evidence that he contracted the debt as administrator; that the debt proved is one against the defendant personally and not as administrator; and that if any cause of action exists against the estate, it is an equitable one and not an action at law. The motion for a nonsuit was granted and the plaintiffs excepted.

In the case of Dalrymple v. Arnold, admr. (21 Hun, 110), which was an action against this same defendant, as administrator, for the price of the coffins in which the intestate and his wife were buried, we held that the funeral expenses of the intestate and those of his wife were a charge-upon his estate. The case of Patterson v. Patterson (59 N. Y., 574), was cited as authority. Reference was also had to section 1, title 4, chapter 6, part 2 of the Revised Statutes, as amended by chapter 267 of the Laws of 1874. Our decision was published after this cause was tried, and it is understood that in consequence of it, the learned judge who tried the cause, set aside the nonsuit. Adhering to that decision we hold that the defendant was liable as administrator, unless the plaintiff contracted with him solely in his individual capacity. There was some evidence tending to show that the defendant contracted as administrator, and for aught that appears, the note, which seems to [6]*6have been given subsequently to the making of the contract, was merely collateral to the original indebtedness. At least, the evidence on those points justified the plaintiffs request that the case be submitted to the jury.

The order should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Order appealed from affirmed.

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32 N.Y. Sup. Ct. 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laird-v-arnold-nysupct-1881.

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