ASHBEL H. BARNEY and JAMES W. BARNEY, as Executors, etc., of CHARLES T. BARNEY, Deceased, and the BARNEY ESTATE COMPANY, Appellants,
HENRY R. HOYT and ALFRED W. HOYT, Individually and as Executors, etc., of ALFRED M. HOYT, Deceased, and Others, Respondents.
APPEAL by the plaintiffs, Ashbel H. Barney and another, as executors, etc., and another, 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 2d day of March, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
Morgan J. O'Brien, for the appellants.
Julius M. Mayer [Charles K. Carpenter with him on the brief], for the respondents.
This is a suit in equity for an accounting upon the theory that the block of land bounded by Eighty-seventh street, Amsterdam avenue, Eighty-sixth street and Broadway, the
record title to which was in Alfred M. Hoyt at the time of his death on the 18th day of June, 1903, was purchased and held for the joint account of said Hoyt and the plaintiffs' testator, Charles T. Barney, who died November 14, 1907.
Hoyt was a man of means and he invested large amounts of money in real estate. Barney was a successful real estate operator. They never were partners in business, but shortly after the purchase in question, and possibly prior thereto, although this is not clearly shown by the record, they became jointly interested in many real estate investments. On the 3d day of February, 1890, by direction of Barney, one Baker, who was in his employ, entered into a contract with Frederick Haberman for the purchase of the premises in question for the consideration of $300,000. Barney advanced $5,000 for the down payment, and thereupon wrote Hoyt with respect thereto as follows: 'The purchase of the block was made, the contract signed by Mr. Baker and turned over to Daly, Hoyt & Mason for examination of the Title. Will you kindly send me check for Five Thousand ($5,000.00) Dollars, paid on the contract? Balance will be payable on March 15th.' Hoyt replied to this letter next day as follows: 'Your favor 5 just recd We enclose you check for Five thousand dollars--being amt paid by you on a/c purchase lots 86 & 87 St. on joint a/c.
'Note balance payable 15 inst.'
A question then arose with respect to the marketability of the title to the northerly half of the block and on the 29th day of April, 1890, Baker took title to the southerly half and paid therefor the sum of $165,000, furnished by Hoyt, and on the same day he entered into a contract with Haberman whereby he agreed to take title to the northerly half of the block and pay the remaining $135,000 provided the Court of Appeals should decide that the title was good. On the seventh day of May thereafter Baker conveyed the southerly half to Hoyt; and the next day Hoyt and Barney executed an agreement in writing under seal, reciting the making of the contract by Baker for the purchase of the premises, the conveyance of the southerly half to Baker pursuant thereto, and the agreement with respect to purchasing the northerly half, and that Hoyt had 'advanced' the money to enable Baker to carry out the
contract, and had received a deed to the southerly half, and agreeing to and with each other as follows:
' First. The said Alfred M. Hoyt hereby agrees that he will furnish the necessary money to carry the said property for the space of three years from the date hereof, and will also furnish the said Baker with sufficient money to enable him to complete his purchase of the north half of the block when the same shall be conveyed to him; and that he will carry the said property for the joint account of himself and the said Charles T. Barney.
'Second. The said Charles T. Barney agrees that at the end of three years, or sooner if the parties shall so agree, to pay to the said Alfred M. Hoyt one-half the total cost of purchasing and carrying said block of ground, and that until such time he shall so pay the said one-half cost, that the ...