LIZZIE M. F. SPALLHOLZ, Appellant,
MARK L. SHELDON, Individually and as Executor, etc., of JAMES C. FERGUSON, Deceased, Respondent.
APPEAL by the plaintiff, Lizzie M. F. Spallholz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 26th day of November, 1910, upon the dismissal of the complaint by direction of the court upon the opening on a trial at the Washington Trial Term, a jury having been waived, and also from an order entered in said clerk's office on the same day dismissing the said complaint.
Robert E. Whalen, for the appellant.
James Gibson, Jr. [ William J. Roche of counsel], for the respondent.
James C. Ferguson executed a will dated January 24, 1891, in and by which he made the defendant the executor thereof, and after two small bequests left the remainder of his estate to his daughter, Lizzie May Ferguson, now this plaintiff, who was then an infant, having been born September 23, 1884. The will was duly admitted to probate and the defendant qualified and acted as executor of the same until about the year 1899, when he was discharged as executor. The plaintiff became of full age September 23, 1905, and in June, 1909, she brought this action alleging that the defendant made nine several accountings as executor, the most of them without any authority of law, and took and received to himself various sums of money for alleged disbursements which were not in fact made and for commissions in excess of those allowed by the statute and for costs and allowances and for holding and caring for the said estate in excess of any amounts to which he might have been entitled and many of them entirely without authority of law, as a result of which he illegally transferred to himself of
the plaintiff's estate various sums amounting without interest to the time that this action was brought to over the sum of $2,200; that these various sums were illegally obtained, were extortionate, fraudulent to the rights of the plaintiff and effected a transfer to the defendant without any consideration of property belonging to the plaintiff and that the several amounts and allowances were obtained as part of a fraudulent scheme of the defendant which existed throughout the whole of his administration of the estate of James C. Ferguson to cheat and deprive the plaintiff of her full right, title and interest of, in and to the estate of the deceased; that all of these matters were unknown to the plaintiff until the year 1909, when for the first time she was informed of the said acts and circumstances and brought her action, after having unsuccessfully demanded repayment and restitution of the said sums to her by the defendant, and she asks judgment for the said sums of money with interest, and that such portions of the surrogate's decrees as purport to sanction the granting and allowing of the said sums of money be vacated and set aside.
The defendant answers denying any fraudulent acts and alleges the Statute of Limitations as a bar to the action. The answer of the defendant also sets forth in full the decree of the Surrogate's Court dated February 24, 1899.
The case came to trial and after the opening address to the jury of plaintiff's counsel, of which the only record is a stipulation as follows: 'The plaintiff's counsel, among other things, stated that this action was brought to recover various sums of money, and as an incident thereto to vacate so much of the surrogate's decrees mentioned in the complaint as constitute a bar to such recovery, and that he would offer in evidence the several accounts and decrees filed in the Surrogate's Court and which were referred to in the complaint,' the complaint was dismissed on the complaint and the opening.
The complaint having been dismissed without a trial and with only the meagre statement of what was stated by the plaintiff's attorney, if in such opening he did not admit his client out of court, the complaint must on this motion be considered as in all respects true, and in my opinion the answer cannot be considered at all. It is strongly contended by the
defendant that since the pleadings are always before the court upon the trial, the answer with the alleged copy of the decree of the Surrogate's Court must be considered as before the judge when he made the decision appealed from. There are several answers to that. One is that no trial was had; simply an attempt to begin one. Second. The trial judge declined to consider the answer as before him in deciding the motion. Third. There was no evidence before the court and it was not admitted by the plaintiff that the copy of the decree attached to the answer was a true copy. Fourth. The defendant could not begin to try his part of the case first by introducing this decree in evidence, and indeed he made no attempt so to do, so I think we must hold as did the trial judge that the answer was not considered by the court in his decision of the motion, and that all that was before the court and is before us are the complaint and the short stipulated opening. Assuming that to be correct we have a case where, under the forms of law, it is alleged that property amounting to over $2,200 was taken from an infant by the executor of her father's will illegally and unlawfully and in pursuance of an apparent fraudulent intention by the executor to convert the infant's property to his own use; that she did not learn of this fraud or of these acts until 1909, when, after demanding restitution, she promptly brought this action. It is alleged here that these various decrees are bars to the recovery by the plaintiff in this court, and that this court has no authority to set aside a decree of the court which had jurisdiction of the person of the plaintiff and of her property at the time such decrees were made. It is answered that it is only attempting and intending to vacate such portions of such decrees as affect the particular transactions in question; that being fraudulently secured, the fraud vitiated the entire decree, and that the question could be raised collaterally and determined in this equity branch of the Supreme Court.
In Hoffman House v. Foote (172 N.Y. 348, revg. 50 A.D. 163) the syllabus states: 'On appeal from a judgment dismissing the complaint at the close of the plaintiff's opening address, every material ...