Downing v. Smith

The Surrogate.—The authorities seem to hold that this court has no jurisdiction to set aside or try the validity of any settlement or agreement. (Bevan v. Cooper, 72 N. Y., 329 ; Sampson v. Wood, 10 Abb., N. S. 223, notes ; Decker v. Morton, 1 Bedf., 477, 484.) [312] The Only question, therefore, is whether the mortgage for $18,000 was delivered to the ward and accepted by him in satisfaction of the sum of $17,143.' The evidence shows that the mortgage was delivered to the ward, and the receipt is conclusive evidence of the ‘fact that it was accepted by him as equivalent to that amount—that means in satisfaction of that amount. I say conclusive evidence, because it has been decided by the Court of Appeals that although a receipt can be. contradicted by parol evidence as to the consideration part of it, yet if it contains words showing that the sum was received in settlement or compromise of a cláim it cannot be contradicted by parol evidence as to that part of it (Coon v. Knap, 8 N. Y., 402), although it may be shown by parol evidence that the sum received in settlement is less than the whole amount actually due. (Ryan v. Ward, 48 N. Y., 204; Miller v. Coates, 66 N. Y., 609.) 1 If a receipt cannot be contradicted by parol evidence as to that part of it which expresses that the sum was’ received in settlement or compromise of a claim, on the same principle parol evidence cannot be offered to contradict that part of the receipt in this case which declares that the mortgage was received as the equivalent of the sum of $17,143. ‘ The other objections are disallowed. • Ordered accordingly.