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Myers v. Brick

Supreme Court of New York, Appellate Division

July 11, 1911

FRANK L. MYERS, Respondent,
v.
HATTIE BURGE BRICK, Sometimes Called HATTIE BURGE MYERS, Appellant.

Page 198

APPEAL by the defendant, Hattie Burge Brick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 1st day of September, 1910, upon the report of a referee.

COUNSEL

Harlan W. Rippey and John B. Abbott, for the appellant.

Charles D. Newton, for the respondent.

SPRING, J.:

The judgment is for money advanced by the plaintiff, at the request of the defendant, to carry on certain litigation in which the latter was interested.

In 1905 the defendant was living with an elderly lady named De Puy in a house which the latter had derived from her husband and which she had conveyed to the defendant. A proceeding was commenced in the County Court of Livingston county to declare Mrs. De Puy incompetent to manage her affairs upon the petition of her son Isaac. The defendant realized that if Mrs. De Puy was adjudged incompetent the validity of her conveyance would be challenged. Neither she nor Mrs. De Puy had the means to carry on expensive litigation and she was enjoined by order of the court from incumbering or conveying the premises she had acquired from Mrs. De Puy. She had long been intimate with the plaintiff, who had often supplied her with money, and in her stress applied to him for financial aid, and he consented to furnish whatever was needed, and at his invitation the defendant and Mrs. De Puy met him at Hornell, where he resided. It is his claim that he there agreed with the defendant to furnish whatever money was required for the purpose of defending the lunacy proceeding

Page 199

and to appeal to the Appellate Division in case of an adverse inquisition, and also to defend the attack upon her title to the house and lot in Nunda.

Lawyers of prominence were employed in the litigation, which was protracted; medical experts were in attendance and the plaintiff paid the expenses. There seems to be no controversy over that fact.

After the pending action was commenced he served a bill of particulars containing an itemized statement of the sums expended, and these expenditures were supported by proof on the trial. The defendant was not sworn, but it was her claim that the money was advanced gratuitously by the plaintiff and without the expectation of reimbursement. The referee has found with the plaintiff on the disputed questions of fact, and his findings are sufficiently sustained by the evidence.

The appellant upon this appeal challenges the correctness of the decision of the referee in many particulars, only one or two of which need be adverted to.

At the plaintiff's suggestion, and with the approval of Mrs. De Puy and the defendant, Mr. Nelson, a prominent lawyer and the mayor of Hornell, was retained to take charge of the litigation mentioned in their behalf. They went to the office of Mr. Nelson, accompanied by the plaintiff, who did not remain during the first interview. The attorney testified that he told the two women it would be expensive to defend the lunacy proceeding, and inquired whether they had the necessary means, and the defendant said that the plaintiff, on certain conditions, would supply the money required. In the afternoon of the same day the plaintiff and the defendant returned to the lawyer's office, and Nelson testified that the plaintiff agreed to furnish whatever money was needed to carry on the litigation, even to the extent of providing for an appeal if one was necessary, provided Dr. Parkhill, who was ...


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