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Wetzlar v. Wood

Supreme Court of New York, Appellate Division

March 24, 1911

JULIUS G. WETZLAR, Appellant,
v.
CATHERINE STEWART WOOD, Appellant, Impleaded with NEW YORK FINANCE COMPANY and EMIL WETZLAR and WILLIAM B. BONN, as Trustees under the Last Will and Testament of GUSTAVE J. WETZLAR, Deceased, Respondents. JULIUS G. WETZLAR, Appellant,
v.
NEW YORK FINANCE COMPANY, EMIL WETZLAR and WILLIAM B. BONN, as Trustees under the Last Will and Testament of GUSTAVE J. WETZLAR, Deceased, Respondents.

Page 312

CROSS-APPEALS by the plaintiff, Julius G. Wetzlar, and the defendant, Catherine Stewart Wood, in the first above-entitled action, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 6th day of May, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Julius G. Wetzlar, in the second action, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of June, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

COUNSEL

Henry L. Scheuerman of counsel, Paul M. Herzog with him on the brief [[Kendall & Herzog, attorneys], for the plaintiff, appellant.

C. Andrade, Jr., for the appellant Wood.

William H. Cochran, for the respondent New York Finance Company.

MILLER, J.:

The plaintiff's father, Gustave J. Wetzlar, died on the 8th day of November, 1898, leaving a last will and testament, which was admitted to probate by the Surrogate's Court of the county of New York, whereby he devised and bequeathed one-third of his residuary estate, amounting to over $434,000, to trustees, and directed them to pay over one-half thereof to the plaintiff when he should attain the age of twenty-five years. The plaintiff's grandmother, Charlotte Wetzlar, died in January, 1902, leaving a last will and testament, whereby she bequeathed to the plaintiff one-eighth of $100,000. The plaintiff became twenty-five years of age on August 23, 1908. On March 31, 1905, he executed two assignments

Page 313

to the defendant the New York Finance Company, one of $8,000 of his interest in said two estates, nominally in consideration of the payment of $4,000, and one of $2,500 of said interest, nominally for services rendered. On April 15, 1905, he executed another assignment of $9,500 of said interest, nominally for $5,000, and on February 15, 1907, he executed another assignment of $11,000 of his interest in his father's estate, nominally for $6,000, but which was modified by an instrument of July 22, 1907, so as to assign an interest only to the extent of $4,590 for the sum of $2,500. These two actions involve the validity of said assignments, the plaintiff asserting that they were mere cloaks to cover usurious loans, and the respondents asserting that the transactions evidenced by them were purchases pro tanto of the plaintiff's interest in said estates.

The transactions involved are somewhat complicated, and it will be impossible, without unduly extending this opinion, to do more than refer to the salient features of the case which lead us to differ with the learned trial justice on the facts.

The said defendant undertook to establish its version of the transactions by the testimony of two of its officers, Charles H. Burr and Arthur W. Depue. Burr testified that the plaintiff proposed to sell what the witness called a $25,000 'charge' on his interest in his father's estate for $15,000, but that $14,000 was agreed upon as the purchase price; that the plaintiff 'got $14,000, no more and no less. Actual spot cash in place of a charge to the extent of $25,000 payable out of this estate when finally settled.' Depue testified that $14,000 was agreed upon as the purchase price of said $25,000 interest and that it was understood that said defendant was to borrow the money and pay the purchase price as soon as possible. Both Burr and Depue testified that it was understood that $5,000 of the purchase price was to be obtained from one Banes.

On March 31, 1905, the date of the earliest assignments in question, the plaintiff made his promissory note for $5,000, payable to the order of said Banes as trustee, and to secure the payment thereof he executed an assignment to said Banes of one-third of all his interest in his father's estate. Burr testified that the services, for which the $2,500 assignment aforesaid was given, were the services of said ...


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