App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. stop work on the contract, and that the defendant had in fact no authority from the Equity Gas Light Company to enter into the contract as he represented. The plaintiff, therefore, sought to recover as damages for the false representation of the defendant made to it, the amount which it had expended upon the contract before it was notified to stop work upon it. The case has been once tried and a judgment for the plaintiff reversed, but upon grounds which do not at all affect the merits of this case. Upon the former trial proof was given by the plaintiff which, it was claimed, proved that the defendant was estopped from asserting that he had authority to make this contract in behalf of the Equity Gas Light Company, because it was claimed that in an action brought against that company by the plaintiff the defendant had testified that he had no authority to enter into the contract, and thereby had induced the plaintiff to discontinue its action against the Equity Gas Light Company. The case was submitted to the jury upon the former trial upon the question of estoppel, but it was held upon appeal that the evidence did not warrant the submission of that question, and for that reason the judgment was reversed. Upon this trial evidence was given bearing upon that question, but the court held that there was not sufficient evidence upon that point to go to the jury, and for that reason the question of estoppel is not in the case. It was not claimed by the defendant that any resolution of the board of directors of the Equity Gas Light Company was ever passed authorizing or requiring this work to be done. He based his claim that he had authority upon the fact that at a meeting of the board of directors it was concluded that this printing and engraving should be done, and that the president of the company, in the presence of the other members of the board and with their implied assent, directed the defendant, being the treasurer, to order the work done. The work in question was the engraving of certain bonds which were to be issued by the Equity Gas Light Company to some Philadelphia people who had agreed to build the gas works and lay pipe for the Equity Gas Light Company and to take their pay in stock and bonds. It appeared that the Philadelphia contractors to whom these bonds were to be delivered were to pay all the expenses of procuring the bonds to be prepared and issued. It also appeared from the testimony of the defendant that he had been acting to some extent for the Phila FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. delphia people, and had been ordering work to be done for which he understood they were to pay. It was claimed by the plaintiff that when the president directed the defendant to procure these bonds to be printed, it was understood by the president and by the directors of the company who were present, and also by the defendant, that this work was not to be ordered for the Equity Gas Light Company, but for the Philadelphia contractors for whom the defendant at certain times had been acting. There was evidence which warranted the jury in finding this fact, not only because it was testified to positively by one of the directors who was present, but because it was fairly to be inferred from the general trend of the testimony, stating how the business was done. The court told the jury that if the president of the company, who by the constitution and by-laws had the power to make contracts, ordered the defendant to procure this work to be done and the defendant understood that it was to be done on the credit of the Equity Gas Light Company, he was authorized to bind the company and the plaintiff could not recover, but if when the defendant received those instructions from the president he understood that he was to order the work upon the credit of the Philadelphia contractors and not upon the credit of the Equity Gas Light Company, and he represented to the plaintiff that he had authority to order this work for the Equity Gas Light Company, the plaintiff was entitled to recover by reason of the false representation which constituted a breach of warranty of his authority. In this charge we think the court was correct and the jury would have been justified from the evidence in finding that the defendant, when he ordered this engraving, understood that it was to be done upon the credit of the Philadelphia contractors and to be paid for by them and not by the Equity Gas Light Company. We have examined the various exceptions taken in the case and presented by the appellant, and none of them is in our judgment well taken. The result of our examination is that the judgment and order are correct and should be affirmed, with costs. VAN BRUNT, P. J., and PATTERSON, J., concurred; INGRAHAM, J., dissented. Judgment and order affirmed, with costs. App. Div.] THE NEW YORK LIFE INSURANCE AND TRUST COMPANY, as Trustee Will-admitted to probate, but declared void in an action for partition — agreement After the will of a testator, disposing of both real and personal property, had been admitted to probate in the proper Surrogate's Court, a judgment was entered in an action brought for the partition of his real estate, declaring the will to be void, and an agreement was entered into between his heirs at law which provided that four of the five heirs at law should convey their interests in the real estate to Calvin Frost, who was directed to distribute the proceeds of such four-fifths of the property as follows: First, he was to pay to the administrator such a sum out of the proceeds as might be required, in addition to the proceeds of the personal estate, to pay the various bequests made by the will, and the residue of the proceeds so that "the entire estate of said Francis W. Lasak (the deceased), both real and personal, less the payment of the money legacies provided in said will, but including one-fifth of the proceeds realized by Mrs. Cuthbert (one of the heirs at law, who did not convey to Frost) under the decree in partition," should be disposed of in a way particularly stated. Held, that under this provision Frost was entitled to receive not only the rents which accrued after the date of this agreement, but also such as had accrued and been paid over to the administrator under the provisions of the will before such agreement was made, as it was clear that the agreement contemplated a division of the entire estate;" That the administrator of the estate was sufficiently notified of the rights of Frost in the property by the presentation of this agreement to its president, reciting, as it did, the conveyance to Frost. Semble, that the administrator having taken possession of real estate which it did not own, and having received the rents and profits thereof, became a wrongdoer as to the real owners, and was bound to account to them for such rents and profits, although they were received by it without notice of their claim thereto; That the action of the admininistrator, in paying over certain of these rents, was not ratified by a letter written by Frost to the administrator, stating that a conveyance had been made to him by certain of the parties in interest, and continuing: “I write this to convey my assent to the payment to them of the shares of income which you would pay to them but for such conveyance," in the absence of proof of any consideration paid to Frost therefor, or of any action having been taken upon the faith of this letter, or upon the promise FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. that it would be sent, made before the time of its date, or of any change of position by the administrator with regard to these rents by reason of anything said in the letter or by reason of its receipt; That as the letter spoke in the future tense, it was entirely ineffectual as a ratification of previous payments. INGRAHAM, J., dissented. APPEAL by the defendant, Antoinette L. Schermerhorn, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the Sth day of November, 1897, upon the report of a referee, except from so much thereof as adjudges and decrees that Aaron Kahn and William M. Hoes, as administrator of the goods, chattels and credits of Stewart M. Schermerhorn, deceased, are not entitled to share in the fund which is the subject-matter of this action. Also, appeal by the defendant, Margaret S. Ives, from said judg ment, except so much thereof as adjudges that the defendants, Antoinette L. Schermerhorn, Aaron Kahn and William M. Hoes, as administrator of the goods, chattels and credits of Stewart M. Schermerhorn, deceased, are not entitled to share in the fund which is the subject-matter of this action. Also, appeal by Mary A. Frost, Antoinette F. Stout and Clarence II. Frost, as executors, etc., of Calvin Frost, deceased, from so much of the said judgment as provides "That no allegation against plaintiff in any answer herein, nor any objection to plaintiff's account has been proved or sustained, and the same and each of the same are hereby overruled;" also from so much of the said judgment as credits and allows the plaintiff Schedule "C" payments to parties on partial distribution the sum of $66,195; also from so much of said judgment as credits and allows the plaintiff Schedule "C" payments to parties on final distribution, $66,195; also from so much of said judgment as finds and decides, orders, adjudges or decrees that the balance December 1, 1896, is $44,328.56; also from so much of said judgment as ascertains, adjudges, orders or decrees that the balance of rents in said judgment stated is $44,328.56; also from so much of said judgment as ascertains, adjudges, orders or decrees that the plaintiff should pay the defendants, the executors of Calvin Frost, deceased, or to either of them, App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. the residue, to wit, such sum as shall amount to four-fifths of the net amount of distributable rents and interest less the following: Paid already to Mrs. Chauvet, $22,065; paid already to Mrs. McKenzie, $22,065; also from so much of said judgment as ascertains, adjudges, orders or decrees that the total amount of $64,650.60 is the sum to be deducted from the sum which shall amount to four-fifths of the net amount of distributable rents and interest. Lucius N. Palmer, for the appellant, Antoinette L. Schermerhorn. G. G. Reynolds, for the respondent, McKenzie. F. R. Minrath, for the respondent, Ophelia J. Cuthbert. RUMSEY, J.: Francis W. Lasak, a resident of Westchester county, died on the 13th of February, 1889, seized and possessed of a large estate, consisting of real and personal property. He left a will with several codicils, which were offered for probate to the surrogate of Westchester county, and were by him admitted to probate after a contest, and his decree admitting the will to probate was affirmed by the Court of Appeals. The executor named in the will renounced his trust and the plaintiff was designated in his place, and letters of administration with the will annexed were issued to it. In pursu ance of the authority of those letters the plaintiff took possession of all the real and personal estate of which Mr. Lasak died the owner, and proceeded to administer upon it according to the will. The heirs at law of Mr. Lasak were four children and a granddaughter of a deceased son. Mrs. Schermerhorn, one of the appellants here, was one of the children. By the will of her father she received only the income of $30,000 during her life, which was very much less than the share of the estate which she would have taken had her father died intestate, and she was apparently dissatisfied with the provisions of the will, which dissatisfaction existed to a somewhat less extent, apparently, in the minds of the other heirs at APP. DIV.-VOL. XXXI. 25 |