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Fitzgibbon v. Parker

Supreme Court of New York, Appellate Division

March 24, 1911

JOHN ALLEY PARKER, Appellant, Impleaded with J. A. PARKER AND COMPANY, Defendant.

APPEAL by the defendant, John Alley Parker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of January, 1910, upon the decision of the court rendered after a trial at the New York Special Term.


Jacob H. Corn of counsel [Siegel & Siegel, attorneys], for the appellant.

Horace E. Parker, for the respondent.


This is a suit in equity to obtain the cancellation of two papers in the form of letters from the plaintiff to the defendants, one of which the defendants procured to be recorded in the office of the register of the county of New York and claim that the same is a lien upon and against two parcels of real estate situate in the county of New York owned by the plaintiff, and the other, which purports

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to be a lien upon one of said parcels of real estate, appears to have been witnessed by a subscribing witness who attempted to prove the execution thereof before a commissioner of deeds but failed to sign the affidavit, and it was presented for record, but was withdrawn after the question as to whether it should be recorded was referred to the corporation counsel for an opinion.

According to the allegations of the complaint, the theory upon which the plaintiff deemed herself entitled to have the instruments, and the record of the one which has been recorded canceled, is that they were never delivered to the defendants, or to either of them; that her signature thereto was procured by fraud; that they were without consideration; that there has been a failure of consideration therefor; that the plaintiff has, on her part, performed the terms and conditions thereof and defendants have failed to perform said terms and conditions on their part and that one of said instruments was recorded wrongfully and through fraud in that it was attempted to prove the same by a subscribing witness who was not requested by plaintiff to be a subscribing witness and without her knowledge or consent. The trial court found that the plaintiff neither delivered nor authorized the delivery of the instruments to the defendants or either of them, and that there was no consideration, and that there was a failure of consideration; and that plaintiff performed by executing the note, and that defendant failed to perform by giving the firm credit for the entire proceeds of the note and by failing to advance to said firm further moneys, and that plaintiff did not request Newman, who signed and proved the instrument which was recorded, to sign or prove the same as a subscribing witness, and the same was so signed, proved and recorded without her knowledge or consent and was not entitled to be recorded, but did not find that the plaintiff's signature to either of the instruments was procured by fraud.

The judgment cannot be sustained on these findings, for in the absence of fraud in inducing the plaintiff to execute the instruments, which she concedes she signed, or mistake, she is chargeable with knowledge of their contents; and if she knew their contents then it is manifest that she intended that they should be delivered to the defendants, for they are addressed to the defendants, and one of them expressly relates, among other things, to the discount

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of her note for $10,000, which the evidence shows she executed for the purpose of having it discounted by the defendants for the benefit of her son, Richard A. Fitz-Gibbon, and that she authorized the recording of the one which was recorded, for it recites that defendants were to be at liberty to record it if they so desired. The same evidence shows that there was a consideration for the execution of the instruments. In one she expressly requested the defendants to pay to her son Richard the sum of $10,000, and she stated that in consideration of such payment she would have handed to them therewith her note for that amount with interest for thirty days, and that she pledged one of the parcels of her real estate to the payment thereof, and she therein agreed that if the defendants would assist her son in this manner she would guarantee any indebtedness which he or another son, Morris J. Fitz-Gibbon, owed to them. This instrument also contains the following: 'My son, Mr. R. A. Fitz-Gibbon, tells me that his firm is at the present time in need of some assistance, and inasmuch as I am away from New York and the necessity of promptness in meeting the situation is necessary, I am pleased to give you this letter, assuring you that any indebtedness of my son, or any renewals of same, which you may extend to him until I can return to New York will be guaranteed by myself, and it is understood herewith that if you help us as above stated that I pledge my property for the faithful payment of any obligations that my sons may be due you.' The other instrument, which is the one which has been recorded, states that the consideration therefor is the fact that the defendants had made certain loans and advances amounting to several thousand dollars on the strength of the signatures of her two sons, and were about to make further loans and advances to the extent of several thousand dollars more on the strength of their signatures. The effect claimed for that instrument is that it was a mortgage upon the two parcels of real estate owned by her and known as Nos. 118 West Seventy-eighth street and 150 West Seventy-ninth street, borough of Manhattan, New York, to secure her guaranty therein contained by which she obligated herself to indemnify the defendants against any and all losses that they might sustain 'by reason of the advancements and loans of any and all moneys' given 'on the strength of the signature

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and guarantee * * * and endorsements of my two sons, Richard A. and Morris J. Fitz-Gibbon, and to that end in purpose beg to state that whether those signatures appear separately or collectively on any papers, notes, checks, bonds or guarantee, that I stand ready to make good any losses that may be sustained now or at any time in the future.' In addition to pledging her property, which this instrument recites was worth $50,000, it contained the representation as to her personal responsibility in the event that the real estate should not be sufficient to pay the loans 'due or to become due,' and by way of a personal bond, that she was worth 'at least the sum of Two hundred and fifty thousand Dollars * * * in real estate wholly unencumbered and in stocks and bonds.' This instrument contained a further recital as follows:

'This letter to cover any and all loans that may have been made or would be made to the firm of Irving K. Farrington & Co., provided the signatures of my two sons heretofore mentioned appear upon the same as additional guarantee, and of which said ...

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