(217 N.Y.S.)

and terminate the contract if the business was not profitable. That term is not in writing in any paper subsequent to August 1, 1918. This shows the contract sued on is not the one claimed to have been subsequently incorporated in correspondence. On the contrary, the elements of the alleged originally oral contract put in writing are at best a doubtful admission of elements of a contract, but not the contract sued on and relied upon in the evidence of this case. Plaintiff testified:

that will re

"Mr. Perez and I have come to an agreement turn to the same as the old contract, the same time and everything,"- -referring to the 1914 agreement containing the above term, which is noted as missing from the alleged subsequent written memoranda of the alleged oral contract.

[12] This "old basis" (Exhibit 19, July 5, 1921) was not an existing basis as of August 1, 1918, which could be evidenced orally (Marks v. Cowdin, supra), but one which had been superseded as a basis (Exhibit 5, August 1, 1918). A fair reading of the correspondence between these parties in 1921, 1922, and 1923 shows that there was no recognition between them of the existence of a long term agreement. This is particularly so from an examination of plaintiff's letters of June 17, 1921, June 27, 1921, and July 5, 1921, and defendant's letters to plaintiff of June 11, 1921, June 23, 1921, and July 1, 1921. During that period the question was up between the parties as to what the basis of their dealings with each other was to be after the terminating of the August 1, 1918, paper agreement. Nothing in these letters indicates the then existence of an agreement between the parties to run for five years upon a commission basis. The language of both parties is indicative of there being no existing arrangement between the parties immediately following the termination of the August 1, 1918, paper agreement, other than the hiring at will set out in the correspondence referred to. That correspondence constitutes a negotiating back and forth, to the end that an agreement be reached, and the basis of agreement reached was a mere hiring at will.

The first time an assertion is made of the existence of a long term agreement is very shortly before the defendant notified the plaintiff of its exercise of its rights to terminate the agreement at will. Before that assertion the plaintiff had committed himself in writing in such a fashion as to preclude the acceptance by this court of his present assertion of the existence of this five-year agreement that he now sues upon. The basis for this conclusion can only be understood by a reading of all the correspondence in the light of the relations of the parties to each other at the time each letter was written. Any different conclusion would not be permitted by a court to be indulged in by a jury.

This conclusion may seem harsh to the plaintiff, but this is because his correspondence and written arrangements with the defendant pre

clude the acceptance of the claim he now advances. If the claim he now advances were the true basis of the arrangement between the parties, he should have set it out more aptly in writing, and have refrained from setting out matter in writing which negatives his present claim. The defendant had a right to avail itself of its legal rights in terminating the hiring at will, which seems to be the character of the relations between the parties after the termination of the agreement shown in the August 1, 1918, paper. I am constrained, therefore, to direct a verdict for the defendant on the first cause of action.

As to the second cause of action, a verdict must be directed for the plaintiff. The only question is as to the amount. I accept the plaintiff's theory and figures with respect to that cause of action, and direct a verdict in the sum of $371.19, with interest of $59.36, being a total of $430.55. The plaintiff has an exception to the directing of a verdict for the defendant on the first cause of action, and defendant has an exception to the direction of a verdict for the plaintiff on the second cause of action for $430.55.

Enter judgment accordingly. Thirty days' stay and 60 days to make

a case.

(217 App. Div. 422)

In re ORT'S ESTATE.

BLAKE et al. v. ORT.

(Supreme Court, Appellate Division, Third Department. July 2, 1926.) Absentees 6-Surrogate Court cannot summarily order person holding property in hostility to absentee owner to turn it over to temporary administrator (Surrogate's Court Act [Laws 1920, c. 928] §§ 126, 127, 131, section 40, as amended by Laws 1921, c. 439, and Laws 1924, c. 100, section 130, as amended by Laws 1923, c. 272, section 205, as amended by Laws 1923, c. 273, and Laws 1924, c. 100, and section 206, as amended by Laws 1924, c. 100).

In view of Surrogate's Court Act, § 127, section 205, as amended by Laws 1923, c. 273, and Laws 1924, c. 100, and section 206, as amended by Laws 1924, c. 100, and notwithstanding section 40, as amended by Laws 1921, c. 439, and Laws 1924, c. 100, Surrogate Court cannot summarily order person holding property in hostility to absentee owner to turn it over to temporary administrator authorized to take over absentee's property under sections 126, 131, and section 130, as amended by Laws 1923, c. 272; purpose of sections 130, 131, being to empower administrator to protect, care for, and preserve property otherwise without protection and subject to waste.

Appeal from Surrogate's Court, Fulton County.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(217 N.Y.S.)

In the matter of the estate of Peter. Ort, an absentee. From an order of the surrogate directing them to turn over to Henry K. Ort, as temporary administrator of absentee's estate, the possession and control of certain real estate in the city of Johnstown, Lillie Blake and others appeal. Reversed on the law, and motion denied.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG. VAN KIRK, HINMAN, and McCANN, JJ.

Alfred D. Dennison, of Johnstown, for appellants.

Ward & Dunkel, of Gloversville (Harry F. Dunkel, of Gloversville, of counsel), for respondent.

COCHRANE, P. J. Peter Ort and Eliza P. Ort, his wife, were the owners as tenants by the entirety of certain real estate in the city of Johnstown, N. Y. Eliza died January 23, 1919, and her husband, Peter Ort, thereupon became sole owner in fee of said premises. At that time he was living and doing business in Los Angeles, Cal. Subsequent thereto he disappeared from that city, and diligent search has failed to establish his whereabouts. On March 8, 1922, the surrogate appointed the respondent, Henry K. Ort, temporary administrator of the estate of said Peter Ort as an absentee. This appointment was proper under section 126 of Surrogate's Court Act (Laws 1920, c. 928). At the same time the surrogate authorized said Henry K. Ort to take possession of said real property and to care for it and receive the rents and profits thereof, and to do whatever was necessary for its preservation or benefit. This authority was properly granted under section 130 (as amended by Laws 1923, c. 272), and section 131 of Surrogate's Court Act. Prior to the appointment of the respondent as temporary administrator, the appellants had taken possession of the real estate, and were in receipt of the rents and profits thereof, and they excluded the respondent from the possession of the property. On affidavits showing the foregoing facts, the surrogate, against the objection of the appellants made an order March 18, 1922, requiring them to turn over the possession and control of the property to the respondent and not to interfere therewith. From this last-mentioned order the appellants appeal.

* * *

We do not find in the statute authority for said order. The language of the statute is that the surrogate may confer upon the temporary administrator "authority to take possession of real property and to receive the rents and profits thereof or to do any other act with respect thereto," which may be necessary for the preservation of the property. Surrogate's Court Act, § 130 (as amended by Laws 1923, c. 272), and section 131. This is merely a grant of power or authority to the administrator. The purpose of the statute is to empower the administrator to protect, care for, and preserve property belonging to the estate which otherwise would be without protection and subject to

waste. Cases frequently arise where property is idle and exposed to deterioration and there is no one clothed with authority to interfere. Such are the cases within the contemplation of the statute. But there is nothing in the statute which implies the power of the surrogate to summarily order the surrender of the property by a person holding the same in hostility to the owner, even though such hostile tenure be without claim of title or shadow of right. The statute rather implies the contrary, for it expressly provides that, "for either of these purposes (the purposes of the statute) he (the administrator) may maintain or defend any action or special proceeding." Section 130 (as amended by Laws 1923, c. 272). Whatever rights the administrator has as against the appellants, he should prosecute in the usual manner. We are referred to no analogous statutory provision relating to an executor or administrator-in-chief, and it cannot be that, in preference to them or to their exclusion, a temporary administrator is entitled to this drastic and summary remedy. Furthermore, section 127 confers on temporary administrators powers in reference to personalty analogous to those conferred by sections 130 and 131 in reference to realty. But we find in section 205 (as amended by Laws 1923, c. 273, and Laws 1924, c. 100) and section 206 (as amended by Laws 1924, c. 100) a complete scheme for the purpose of determining the title or right to possession of such personalty as against one claiming such title or right to possession. Clearly therefore section 127 does not, in respect to personalty, authorize an order similar to that we are now considering, and by a parity of reasoning such order is not justified by sections 130 and 131 in respect to realty. Section 40 of Surrogate's Court Act (as amended by Laws 1921, c. 439 and Laws 1924, c. 100) does not aid the respondent. That section merely amplifies the power of the surrogate in cases where he has jurisdiction.

The order should be reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

(217 App. Div. 420)

LASKI v. STATE et al.

(Supreme Court, Appellate Division, Third Department. July 2, 1926.) 1. Subrogation 7(1)-Surety, completing state improvement contract on contractor's default, held subrogated to rights and remedies of state, and not liable to contractor's assignee.

Surety on bond to state to secure performance of contract to do work on state hospital, which surety completed on contractor's default, held subrogated to rights and remedies of state, and not liable to assignee of contractor's claims for amounts due on contract.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

2. Subrogation 1.

(217 N.Y.S.)

Right of subrogation does not originate in contract, and does not extend beyond requirements of equity and justice.

8. Subrogation 36-Materialman, who furnished material to contractor on state improvement contract, had right superior to contractor's surety, completing work on contractor's default, in amount due from state.

Where surety on bond of contractor with state to erect a public improvement, on contractor's default, completed work at instance of state, materialman, who furnished material to contractor, had claim against amount due from state superior to that of surety.

Appeal from Supreme Court, Albany County.

Action by Emil Laski against the State of New York, the Industries Development Corporation, and others, to foreclose lien on moneys due from the State under contract for work on state hospital building which were claimed by the Development Corporation under an assignment from the contractor, and by the defendant Fidelity & Deposit Company of Maryland by reason of its completion of the contract on the contractor's default. From a judgment for plaintiff, on a decision of the court after a trial before the court without a jury (126 Misc. Rep. 360, 212 N. Y. S. 675), the development corporation appeals, and from part of the judgment the Fidelity & Deposit Company of Maryland appeals. Judgment unanimously affirmed.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, VAN KIRK, HINMAN, and McCANN, JJ.

Jacob I. Goodstein, of New York City, for appellant Industries Development Corporation.

Wallace P. Harvey, of New York City (Thomas E. White, of New York City, of counsel), for appellant and respondent Fidelity & Deposit Co. of Maryland.

Charles Saleson, of New York City (Jacob I. Goodstein, of New York City, of counsel), for plaintiff respondent.

PER CURIAM. [1] The bond was given solely for the protection of the state. There is no evidence, and it is not claimed, that the assignee advanced any money which went into the construction in question. As against the assignee, therefore, the surety is subrogated to all the rights and remedies of the state, and this right of equitable subrogation arose when the contract with the state was made. Prairie State National Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412. As the state, on completion by it of the defaulted contract, would not be liable to the assignee, so neither is the surety, which is subrogated to the rights of the state.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 217 N.Y.S.-4