Boschen v. Stockwell

Howard, J.: The pleadings herein present a square issue of fact in an action at law. This issue of fact has been submitted to a jury [35] and the jury has found against the defendant. Neither litigant invokes the equity side of the court and, therefore, we must consider the matter as it comes to us and pass upon the question presented hy the appeal. Julia B. Bryant, on August 6, 1908, entered into a written contract with the defendant whereby he agreed to sell to Mrs. Bryant a certain building lot in the city of Albany and erect thereon a house. By the terms of the contract Mrs. Bryant agreed to pay $4,500 for this property; $1,500 in cash, $500 by her note, and $2,500 by assuming the payment of a mortgage for that amount which was to be placed on the property. The house was afterwards built by the defendant, and Mrs. Bryant paid the $1,500 in cash and paid $400 on the note, making a total of $1,900 had and received by the defendant from Mrs. Bryant. It is to recover this $1,900 that the action is brought. No deed of the property has ever been delivered hy the defendant to Mrs. Bryant. This action is instituted hy William 0. Boschen, a son of Mrs. Bryant, he having been appointed a committee of her person and estate. The allegations of the complaint are to the effect that Mrs. Bryant was of unsound mind and incompetent to manage her affairs at the time of the transactions with the defendant. The answer denies this, sets up the written contract .and alleges that the defendant has been willing at all times to perform the conditions of the contract on his part. The defendant in the answer asks for no equitable relief. And by way of corroborating our view that the defendant had no purpose to ask for equitable relief in his answer, it should be noted that the defendant’s counsel interrupted the trial court during the charge, for the purpose of concurring in the court’s declaration that no equitable relief was sought. So that the question before the jury was as to the competency of Mrs. Bryant at the time of her transactions with the defendant. Mrs. Bryant was at one time a woman of great strength of character and possessed of considerable business ability. Was her reason dethroned and her capacity spent when she dealt with the defendant ? We do not propose to review the evidence offered on that issue. The usual array of doctors, neighbors, nurses, experts and alienists was pro [36] duced before the jury and sworn. The acts, manners, habits, language, letters and looks of the unfortunate woman were detailed to the jury to prove, as well as to disprove, her incompetency. The opinions of the alienists, the diagnoses of the doctors, the observations of the nurses, the admissions of the litigants, were all presented to the jury. After due deliberation, being correctly instructed by the court, they rendered a verdict for the plaintiff; thus, in effect, finding that the woman was incompetent to transact business on the dates in question, and that the apparent contract was in fact no contract at all. Swiftly after Mrs. Bryant’s transactions with the defendant her mental malady progressed until her derangement became so obvious that she was committed first to a public and then to a private insane asylum, where she still remains hopelessly demented. Thus events subsequent to the contract in question lend verification to the correctness of the verdict and vindication to the judgment of the jurors. Two juries have pronounced this woman incompetent, and, although the verdict of the jury in the proceedings for the appointment of a committee could properly relate only to her condition at the time of the inquiry, yet that verdict adds to the conviction that this woman did not comprehend her acts when she paid the $1,900 over to the defendant. We see no reason to disturb the verdict of the jury in this case. Indeed our examination of the record leads us to the same conclusion as that reached by the twelve men who saw the witnesses and heard the testimony. We have examined with great care and considerable interest the contention of the defendant that the proceedings by which Mrs. Bryant was declared incompetent were void. But we have arrived at the conclusion that the objections thus made are not available to the defendant, and can only be taken by the incompetent person in an effort to release herself and her property from the custody of the committee. The principal irregularity complained of is that the precept issued by the commissioners to the sheriff commanding him to impanel a jury was signed by the commissioners before they took their oath of office. Had this defect in the proceedings come to us on an appeal by the alleged incompetent from the order confirming the return of the commission, as was the case in Matter of [37] Bischoff (80 App. Div. 326), we might have considered this deviation from the strict letter of the Code sufficient to warrant us in setting aside the proceedings. But the complaint against the defect here comes to us in a collateral way; comes to us from one who is not aggrieved and cannot he aggrieved by this mere fault in procedure. Seldom is there an action or proceeding carried through the courts in which there are not missteps in the procedure. • Unless these faults are substantial and do harm to somebody they must be ignored. Owing to the multiplicity of statutes and sections and subdivisions and decisions, the wonder is that a single proceeding ever runs the gauntlet of these complexities alive. More and more the Legislature is untying the hands of the courts, and not only permiting, but commanding them to ignore technicalities and do right. Therefore, in view of the manifestly unsubstantial and highly technical character of the defect which is complained of, we must hold it to be, so far as this appellant is concerned, a mere harmless irregularity. This is not a hard judgment. The defendant must pay back the $1,900, with interest, but he yet has his property. He has met with some loss in the transaction by way of the idleness of his house, payment of interest on the mortgage and taxes; but even if he acted, as he says he did, in good faith, he was transacting business with a woman whose talk and appearance should, at least, have excited his suspicion. He took his chances and the small losses with which he has met are only such as are incident to business ventures of this character. The judgment and order appealed from should be affirmed, with costs. All concurred, except Kellogg, P. J., dissenting in opinion, in which Lyon, J., concurred.