Schmitz v. Langhaar

Barnard, P. J.: The claim of the plaintiff against the defendant is undisputed. The only question is upon the legality of the counter-claim claimed by the defendant. The plaintiff had a claim against the estate of James B. Taylor. He sold this claim to the defendant’s testator and in the assignment it was provided as follows: “ In case the money received by me from John Langhaar cannot be collected from the representatives of James B. Taylor, I agree to pay the same to John Langhaar, with interest.” The assigned' claim was presented to the executor of the estate and admitted by the executors. Subsequently a receiver was appointed for the estate and a referee appointed to pass upon the claims, and then the claim in question was presented again to the referee, who ordered $1,500 deducted for a mirror not delivered to Taylor in his lifetime, but which continued in the possession of Schmitz, plaintiff. The estate of Taylor was the subject of several protracted and expensive litigations and was in great part eaten up and consumed in costs. The defendant’s testator did not incite this litigation and could not stop it. At the end of the litigation there was but twenty-ñve per cent left for the creditors, although the estate was a large one. This seems sufficient proof that the bill “ cannot be collected from the representatives of James B. Taylor.” The defendant did everything required bylaw. The bill'was presented and proven, and became by these means of the same force as if a judgment had been obtained. No execution could issue on the judgment without leave of the court and then only for the distributive share. While the litigation was pending which would determine the amount of such share, it would probably not have been permitted that -execution should issue. Certainly no charge of negligence [171] can be found on an omission to apply for leave to issue execution. The creditor received bis distributive share, being twenty-five per cent; be would have received no more if he had issued his execution. It seems to me that the right to recover back the money is clear, and the judgment should, therefore, be affirmed. DyKMAN, J., concurred.