Rosenberg v. Rosenberg

147 N.E. 609, 240 N.Y. 125, 1925 N.Y. LEXIS 710

Opinion

Per Curiam.

The plaintiff made claim against the executors of his deceased father for moneys alleged to have been held by the testator to his use. He received from his mother, one of the executors, a promissory note payable on demand for the amount of this claim, signed “ Estate of Charles Rosenberg per Barbara Rosenberg, Executrix.” The court charged the jury that this note, if made for a sufficient consideration, was binding on the estate though the other executors had neither co-operated in making it nor ratified it thereafter.

The law is settled to the contrary (Union Bank of Brooklyn v. Sullivan, 214 N. Y. 332, 343, 344; Bailey v. Spofford, 14 Hun, 86; Hammon v. Huntley, 4 Cow. 493, 494, 495).

These authorities are not opposed to Barry v. Lambert (98 N. Y. 300). There money was delivered to one of two executors after the death of the testator upon a trust orally declared. Authority to accept the deposit carried with it authority to fix the terms of the acceptance (cf. Hammon v. Huntley, supra).

The conclusion thus reached makes it unnecessary to consider other rulings, some of which are cut off from our power of review by the unanimous affirmance.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.