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Simon v. Burgess

Supreme Court of New York, Appellate Division

July 7, 1911

HENRIETTA SIMON, Appellant,
v.
CORA L. BURGESS and Others, as Executors, etc., of WILLIAM H. BURGESS, Deceased, and as Trustees of the Trusts Therein Created, and Others, Respondents.

Page 38

APPEAL by the plaintiff, Henrietta Simon, 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 28th day of February, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

COUNSEL

Henry L. Scheuerman, for the appellant.

John H. Iselin, guardian ad litem, for the respondents Lucy E. B. Gurnee and others.

Albert Stickney [Donald C. Muhleman with him on the brief], for the executors and others, respondents.

LAUGHLIN, J.:

This is a suit in equity to have it adjudged that the plaintiff has a lien upon certain real property in the borough of Manhattan, New York, described in a letter written by William H. Burgess to Messrs. Rose & Putzel, a firm of attorneys and counselors at law, on the 15th day of July, 1903, for the sum of $25,000, and that in default of payment of said sum to her, with interest, the premises be sold, and that the proceeds, over and above the sum of $690,000, be applied, so far as necessary, in satisfaction of her lien, and in the event that a sale cannot be had that the executors of Burgess be adjudged and decreed to pay the plaintiff the said sum of $25,000, with interest; and a conveyance of the premises by Burgess to his wife alleged to have been made without consideration is sought to be set aside. The only basis for the plaintiff's claim is an assignment of the rights of Ferdinand H. Mela under and by virtue of said letter, which is as follows:

'NEW YORK, July 15th, 1903.

'ROSE & PUTZEL:

'GENTLEMEN.--If you will procure a general release executed by Ferdinand H. Mela of any and every claim that he may allege he has against me, I will agree to pay to you for his account, whatever sum I may realize on the sale of the Coronet,

Page 39

58th Street and 6th Avenue, over and above $690,000, but only to the extent, however, of $25,000, so that in no event shall he receive from me more than $25,000. In speaking of $690,000, I include the present mortgages of all kinds affecting the property. This is intended to bind me and my executors.

'Very truly yours,

'WILLIAM H. ...


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