Lerche v. Brasher

44 N.Y. Sup. Ct. 385

• Court: New York Supreme Court
• Decided: September 15, 1885
• Status: Published

Opinion

BaeNAed, P. J.:

The new trial was properly granted. The claim was for services rendered Pierre M. Yan Wyck, deceased, by the plaintiff as his attorney and agent. The denial is complete upon the part of the administrator. Upon the trial the plaintiff presented himself as a witness in his own behalf. There was given in evidence a certified copy power of attorney from the deceased to the plaintiff. taken from the records of the city and county of New York. There was other proof given tending to show an employment of the plaintiff made by the deceased in his lifetime. The plaintiff, under objection, was permitted to testify to the services done under this employment and to tbe value of snob services. Tbe court charged tbe jury in respect to section 829 of tbe Code, wbicb forbids tbe reception ■of evidence of a party to a transaction wben the opposite party to it is dead, as follows : “ Now, tbe statute to, wbicb I have referred -dues not, in my opinion, prohibit a man, after bis employment has been shown by other evidence, from testifying of tbe services wbicb be has performed.”

We think that section 829 of tbe Code does not peimit this evidence. Assuming a general employment as of attorney and client, it is not permitted that an attorney shall build up tbe claim by bis own evidence of what was done by him under tbe employment. Every item of an account so made up is a transaction with tbe deceased, because it needs an employment and services to make tbe claim. The section in question gives no real protection to estates of deceased persons if so read. Tbe party benefited makes tbe claim and establishes its value by bis own oath. (Fisher v. Verplanck, 17 Hun, 150.) It was also erroneous to permit tbe question to be answered by plaintiff that tbe claim bad not been paid. (Howell v. Van Siclen, 6 Hun, 115; affirmed, Court of Appeals, 70 N. Y., 595.)

Tbe question of the- counter-claim is not free from doubt. Tbe .answer charges that tbe plaintiff became possessed of certain personal property of tbe deceased after bis death, and, to defraud the estate, transferred tbe same, thereby causing great damage to tbe •estate. If this bad been done in tbe lifetime of deceased it would be tbe right of tbe administrator to seek redress by way of eounter-•claim. The injury was done after death, but it must be either wholly remediless or tbe executor or administrator must sue for redress. If tbe cause of action belong to the administrator or •executor, in bis representative capacity, be must sue in that capacity. (Code, § 1814.) If be can sue as administrator be can set up a counter-claim in an action brought against him in his representative •capacity, unless be is prevented by tbe principle that a tort cannot be set off against a contract. Even that can be done wben tbe cause of action for tort grew out of some transaction or is connected with tbe subject of the plaintiff’s action. (Code, § 501.) This depends whether tbe cause of action on tbe plaintiff’s part ended with tbe life of tbe deceased within tbe meaning of this section. It seems to me it does not. Assuming that the plaintiff, under an employment by deceased, obtained possession of the property, and by virtue of a power of attorney from deceased dated an assignment back to a time when the deceased was living, then this was a transaction growing out of the employment, although done after the death of the client.

The order granting a new trial should be affirmed, with costs.

DyeMAN, J., concurred.

Order granting new trial affirmed, with costs.