WILLIAM SPERB, JR., Resp't, v. THE METROPOLITAN ELEVATED R. Co., App'lt.

(Supreme Court, General Term, First Department, Filed June 26, 1890.) DISCONTINUANCE-AUTHORITY OF ATTORNEY TO SETTLE ACTION-REVOCA

TION OF.

Plaintiff authorized his attorney, in April, 1889, to settle the action on payment of $3,000, but revoked such authority on the 19th of that month. On the 18th a stipulation for settlement was signed by defendant's attorneys and sent to plaintiff's attorney, who signed and returned the same, but the evidence as to when this was done was uncertain. Held, that the burden was not entirely on plaintiff to show that the stipulation was absolutely signed after withdrawal of the authority, and that as defendants have lost nothing by reason thereof, the appellate court would not interfere with an order vacating the stipulation.

APPEAL from order made at special term, setting aside a stipulation for the settlement of this action.

Brainerd Tolles, for app'lt; Edwin M. Felt, for resp't.

VAN BRUNT, P. J.-A motion was originally made for this purpose at the special term, but upon the hearing the judge presiding not being willing to pass upon the conflicting statements made in the affidavits, a reference by consent was made to Stephen H. Olin, to take proofs and report the same, with his opinion thereon.

The referee, after hearing the parties and the proofs which they produced, reported that early in the month of April, 1889, the plaintiff authorized his attorney to settle this action with the defendants upon the receipt from them of the sum of $3,000, and that on the 19th of April the plaintiff, by notice in writing, revoked and annulled the said authority to settle the action; that an agreement for the settlement of the action was, on the 18th of April, 1889, signed by the defendant's attorneys and delivered to the plaintiff's attorney; but that the said agreement was not, on said day, signed by the plaintiff's attorney and delivered to the defendant's attorneys; that thereafter and after April 19, 1889, and after the said revocation of his authority to settle the action, the plaintiff's attorney signed the said stipulation and delivered the same to the defendant's attorneys.

Upon these facts the court vacated the stipulation, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that there is no evidence whatever to sustain the finding of the referee that the stipulation was not signed by the plaintiff's attorney until after the revocation of his authority.

The counsel for the respondent claims that as the sole question to be determined upon the motion was one of fact, and that as a full opportunity was offered to the defendants to produce their proofs before the referee, and that after doing so, both the referee and the judge at special term have concurred that the motion should be granted and the stipulation vacated, this court will not review the facts, and unless some error of law is found, it will affirm the order appealed from.

We think, however, that the learned counsel for the respondent is mistaken in respect to the duty of this court upon the hearing of this appeal. We think that it is bound to consider the evidence, and if, upon the whole case, it thinks that a different result should have been arrived at, it is its duty so to decide. There are no questions of law involved in this appeal, but simply a question of fact, and although the court in reviewing the facts should bear in mind the circumstance that the referee in examining the witnesses before him had the benefit of their oral testimony, had the benefit of their demeanor upon the stand, in determining what credit should be given to their evidence, his findings thereon are not necessarily conclusive.

There is unfortunately in this case a degree of uncertainty in reference to certain material features which makes it somewhat embarrassing when the court considers the evidence taken before the referee as it appears in the record now presented.

There was from the evidence offered upon the part of the plaintiff a presumption created arising from the admissions of the attorney, sworn to by the plaintiff and his witness, and which evidently was believed by the referee, that the stipulation in question had not been signed by the attorney until after the revocation of his authority.

It is true upon his examination the attorney testified to a condition of affairs which is inconsistent with this idea, as, according to his testimony, the stipulation was signed immediately after Mr. Smith returned from his interview with the plaintiff a day or two

before the revocation.

It is true that the attorney could not give the date upon which he claims this stipulation to have been signed. But we think that no great weight should be placed upon this fact, because if a date is fixed by testimony as to events it is equally as satisfactory as though the particular date had been given; because it is a familiar feature in respect to testimony that many persons cannot 1 collect dates, but whose recollection of events and the sequence of events is perfect.

This testimony was entirely inconsistent with that given on behalf of the plaintiff, by the plaintiff himself and Mr. Thomas, who saw the plaintiff's attorney subsequent to the revocation of the authority.

And we are equally unfortunate in the want of memory of the representative of the defendant's attorneys who had charge of this matter. Their blotter shows that undoubtedly on the 18th of April a stipulation was signed for the settlement of this case. But by whom does not appear and it would seem to be probable that entry was made at the time the stipulation in question was signed by the defendant's attorneys and sent to the plaintiff's attorney. This witness has no independent memory of the date when the exchange of stipulations took place. All that he could testify to after reading the entry was that he belived that on the 18th of April he exchanged written stipulations and that all that he recol lected positively was that stipulations were exchanged.

It is true that certain letters from the plaintiff's attorney to the

plaintiff were sought to be proved, but there was no satisfactory evidence that they had ever been received by the plaintiff, so as in any way to invalidate the testimony which he gave before the

referee.

It is urged upon the part of the appellant that there was a radical misconception of the issue before the referee and of the situa tion of the parties relative to the burden of proof. Upon this point we think there is also a misconception upon the part of the appellants. The right of the plaintiff to be relieved from this situation does not depend upon the strict rules of law. But in view of the fact that the defendants have lost nothing by reason of the stipulation being given, the court could relieve the plaintiff from the stipulation even after it had been given by his own act, if it was given unadvisedly and it would be inequitable to hold him to its terms. The burden therefore is not entirely upon the plaint ff to show that this stipulation was absolutely signed after the withdrawal of the authority. If there was grave doubt upon that subject the court would be justified in relieving the plaintiff from the situation, although he did not absolutely establish that it had been signed subsequent to the revocation of the authority.

Upon an examination of the evidence in this case we see no reason for interfering with the order of the court below, and it should be affirmed, with ten dollars costs and disbursements. BRADY and DANIELS, JJ., concur.

LEWIS STONO, App'lt, v. HERMAN WEILLER, Resp't (Supreme Court, General Term, First Department, Filed June 26, 1890.)

1. JURY-RIGHT OF TRIAL BY-MALICIOUS PROSECUTION AND FRAUDULENT

RELEASE.

An action to set aside a release as fraudulent and procured by duress, and for malicious prosecution, is properly triable before the court without a jury, as only courts of equity can set aside an agreement as fraudulent.

. DURESS-RELEASE.

Proof that threats were used to procure the execution of a release is not alone sufficient to show that it was procured by duress; it must also ap pear that it was executed because of such threats or that they constrained the will of the plaintiff and induced the execution of the release. APPEAL from judgment of special term dismissing complaint. A. B. Moore, for app'lt; S. F. Higgins, for resp't.

VAN BRUNT, P. J.-This action was brought to set aside a general release executed by the defendant and to recover damages for malicious prosecution. Upon the case coming up for trial before a judge and jury, the court refused to try the case with a jury and sent the case to the special term for trial, upon the ground that equitable relief was asked for, to which the plaintiff excepted. The case subsequently came up for trial at special term before a judge without a jury, and upon the evidence offered upon the part of the plaintiff the court dismissed the complaint, which ruling was excepted to, and these exceptions are the ones which are brought up by this appeal.

It is urged that the plaintiff had a right to a trial of the ques

tion of the fraud in the release by a jury, and that the practice of allowing questions of this character to be heard by a jury is as old as civilization.

We think, however, that under any condition of the pleadings the allowing of such questions to be tried by a jury as matter of right is quite a modern innovation. It is undoubtedly true that if the pleader had drawn his complaint in proper form, he might have had this question of duress in respect to the release tried by a jury. But he has chosen in his complaint to assail the release and ask that it be adjudged fraudulent and void, and only a court of equity can grant such relief. If he had sued for the damages for malicious prosecution, ignoring the release altogether, and thei defendant had set it up as a defense in his answer, he might have attacked the release before a jury; but having asked to have it set aside in his complaint, the action was properly triable before the court without a jury. In fact, until the innovations introduced by the Code, he could not have maintained his action for malicious prosecution at all without first bringing his action in equity to set aside the release.

It appears from the evidence that the plaintiff had been arrested for embezzlement, and that while under arrest the defendant had made threats that unless the plaintiff paid him fifty dollars and his attorney twenty-five dollars and gave a general release he would send him to the state prison.

But there is no evidence in the case upon the part of the plaintiff that he executed this release because of such threats or that they constrained the will of the plaintiff and induced the execution of the release. It may be that the plaintiff intended that this should be inferred. But no such evidence appears in the case presented upon this appeal. It appears to us that the absence of this class of evidence is fatal to the plaintiff's claim. Had it been present an entirely different case would have been presented.

In the cases of Dunham v. Griswold, 100 N, Y., 224, and Schoener v. Lissauer, 107 id., 111; 11 N. Y. State Rep., 368, it was held that such threats, where a party is under arrest, will support the claim that a promise was obtained by duress per minas.

There being no evidence, however, that these threats were the inducing cause of the execution of the release, we think the judg ment appealed from should be affirmed, with costs.

BRADY and DANIELS, JJ., concur.

In the Matter of the Will and Codicil of JANE E. KELEMEN, Deceased.

(Supreme Court, General Term, First Department, Filed June 26, 1890.)

1. WILLS-CONSTRUCTION-EVIDENCE.

Parol evidence of conversations as to testator's intention, and even written memoranda, are not admissible to destroy a will which, on its face, is not in contravention of any statute.

N. Y. STATE REP., VOL. XXXII.

118

2. SAME-TRUST.

A codicil provided that doubts having arisen as to the validity of certain charitable bequests in the will, testatrix modified the same by making one W. residuary legatee, and requested him to carry into effect her wishes in respect thereto. It also provided that this was not to be construed into an absolute direction, but merely her desire. Held, that evidence to establish an agreement between deceased and W., whereby he was to carry out the trust, was inadmissible; that there being no direction contained in the codicil, but merely a request which the legatee could comply with or not, as he pleased, no trust was created thereby and the codicil was not in contravention of the statute.

(Matter of O'Hara, 95 N. Y., 403, distinguished.)

APPEAL from decree of the surrogate construing a will and codicil.

D. McClure, for app'lt; J. F. Miller, for resp't.

VAN BRUNT, P. J.—The will in question was made and executed in February, 1889, and the codicil a few days after in the same month. The testatrix died in March, 1889. By the fifth paragraph of the will the testatrix bequeathed certain legacies to certain charitable societies, and by the ninth clause, bequeathed and devised her residuary estate to one of said charitable societies. The codicil in question was as follows:

"Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will dated February 18, 1889, by making my friend, Townsend Wandell, my residuary legatee and devisee, and hereby request him to carry into effect my wishes in respect thereto. But this is not to be construed into an absolute direction on my part, but merely my desire. In all other respects I ratify said last will and testament dated February 18, 1889."

It is conceded that the legacies to the charitable societies were made void by the death of the testatrix within two months after the making of the will; and that the only question for consideration was whether the gift to Wandell by the codicil, which revoked the ninth clause of the will, was valid; and it is also conceded that a finding that it was valid necessarily excluded a finding that there was any trust for the benefit of the next of kin or of anybody else, or any agreement between the deceased and Wandell whereby the latter was to carry out any trust.

Parol evidence was given of the circumstances attending the execution of this codicil, not for the purpose of contesting the probate of the same, but for the purpose of establishing an agree ment between the deceased and Mr. 'Wandell, whereby the latter was to carry out the trust, thereby making the codicil void as contravening the statute.

Upon what theory evidence of this kind is admissible I cannot comprehend. It is a cardinal principle in the construction of the terms of a will that the intention of the testator must be gathered from the will itself; parol proof only being permissible to show the condition of the estate, and the surroundings of the testator, and that conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of the statute, much