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In re Berenson

Supreme Court of New York, Appellate Division

June 21, 1954

In the Matter of the Accounting of HERMAN J. TART, as Coexecutor of WLADIMIR BERENSON, Deceased, Appellant. ANTONIE BERENSON-CHIRKIN, Appellant; VLADIMIR VICAS, Respondent.

Page 267

APPEALS by the coexecutors of the will of Wladimir Berenson, deceased, (1) from a decree of the Surrogate's Court of New York County (COLLINS, S.), entered July 3, 1953, which (a) sustained objections of respondent to the intermediate account filed by Herman J. Tart as coexecutor, and (b) allowed respondent's claim against the estate in the sum of $8,000 and interest from May 31, 1943, and (2) from an order of said court, entered December 21, 1953, which denied a motion by the coexecutrix Antonie Berenson-Chirkin for a new trial.

COUNSEL

John F. X. Finn of counsel (Tart Bros. & Wald, attorneys), for Herman J. Tart, as executor, appellant.

Robert H. Peterson of counsel (Jas. Maxwell Fassett, attorney), for Antonie Berenson-Chirkin, appellant.

Leo J. Friedman of counsel (Arthur J. Brothers, attorney), for respondent.

BERGAN, J.

In his lifetime the deceased Wladimir Berenson held for the account of the objectant Vladimir Vicas 'about $8,000'. Berenson was related to Vicas and referred to him as 'my cousin'. The indebtedness of decedent to Vicas was expressed in a cryptic written form. A letter was addressed to Vicas, dated June 27, 1942, which said, merely: 'By this letter I affirm that I have at your disposition about $8,000'.

Page 268

The letter was written in Russian which both men understood. We are not otherwise advised about the nature of the obligation.

In the three months before he died on May 31, 1943, Berenson paid Vicas $7,988 which quite literally fulfills the sum of 'about $8,000' which decedent had at his 'disposition'. It would be taken quite as a matter of course that this payment to objectant by the decedent just before he died of the money he had stated he held for him would have requited the decedent's obligation in full.

But objectant seeks to avoid the effect of this conceded payment to him by a curiously disingenuous assertion that the money he received from Berenson was for something quite different; and he argues that the estate still owes him $8,000. The claim was not presented until October 21, 1948, between five and six years after decedent's death. The Surrogate after a trial held, however, that the claim of objectant is good. He also denied a motion made by the coexecutor for a new trial based on newly discovered evidence.

Payment of the $7,988 was made by the decedent to Vicas in three separate checks in 1943. One was March 8th for $2,280; one March 19th for $2,208 and one April 19th for $3,500. The claim of Vicas was that he was dealing in diamonds; that he had just come from Europe and 'was frozen' and for some reason, not made entirely clear to us, he could not have a bank account; that in order to do the kind of business in diamonds Vicas wanted to do, a business described as dealing in 'little diamonds', it was required that checks be used for payments and that cash was quite unacceptable in the market among the dealers in these transactions.

The witness who testified to all these details was Roman S. Tumarkin, who had known Vicas his 'whole life' and was a joint adventurer in the diamond transactions with him. 'I proposed' he said to Vicas 'buying little diamonds'. He testified further that when Vicas suggested putting in cash for the venture, 'I told him that it is impossible but in our business it is possible only checks. He answered me, he said, he is frozen; he is coming only a few months from France and he cannot give a check.' Tumarkin testified that Vicas then said that perhaps Berenson 'can help us'.

Vicas then made an arrangement, according to Tumarkin's testimony, by which he would give the decedent Berenson cash and Berenson would give Vicas the equivalent of the cash in checks so Vicas could have ready at ...


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