(1) As I understand the prevailing opinion, the court stops short of deciding that the Wechsler executors established as matter of law their contention that Byrne and Bowman had wrongfully participated with Ralph Wechsler in the breach of his trust as executor. Accordingly I do not take up that issue.
(2) The court postulates the out and out assertion "that the agreement arrived at by the officials in the Port Authority was to pay as a purchase price the sum of $818,700." I cannot agree to this construction of the evidence as matter of law.
The contract for the sale of the property by the Wechsler executors to the Port Authority was made on February 24, 1928. The purchase price stated therein was $810,000. The Port Authority did not commit itself to make the additional payment of $8,700 until March 30, 1928. This commitment was recorded as follows: "The Chief Executive Officer reported that in negotiating for the purchase of the property on the southwest corner of Broadway and 179th Street from the Estate of Sigmund Wechsler, the executor had insisted upon the purchaser paying as part of the purchase price the brokers' commission of $8,700.00in addition to the purchase price of $810,000; that Byrne Bowman, the brokers in the matter, had submitted a bill for services of $8,700 which amount was based upon the prevailing rates and which he considered reasonable under the circumstances. He, therefore, asked that his action be approved and that he be authorized to pay the bill rendered. Whereupon, the following resolution was adopted: Resolved, that the action of the Chief Executive Officer in agreeing *Page 297 to pay the brokerage fee as part of the purchase price of the property on the southwest corner of Broadway and 179th Street from the Estate of Sigmund Wechsler, deceased, for the Hudson River Bridge Approach, be ratified and approved and that he be authorized to pay such firm for its services in effecting suchpurchase price the sum of $8,700." (The emphasis is mine.)
The foregoing resolution for the payment of $8,700 to Byrne and Bowman, as I read it, did not necessarily mean that the Port Authority would in any event have been willing to pay to the Wechsler estate $8,700 more than the purchase price of $810,000 that had been theretofore fixed by the contract of sale made by the Wechsler executors with the Port Authority on February 24, 1928.
The court makes much of a letter written by Byrne to Bowman one month before the adoption by the Port Authority of the foregoing resolution. The letter (which is quoted at length in the prevailing opinion) was at most an extra-judicial or unsolemn admission — an item of evidence — and was not in itself final or conclusive in any legal sense. (Gangi v. Fradus, 227 N.Y. 452; 4 Wigmore on Evidence [3d ed.], § 1059.)
In that state of the record, I am not prepared to say with Judge FINCH that the courts below were wholly without reason for their finding of fact that Byrne and Bowman had not failed in their duty as brokers to obtain for the Wechsler estate the highest price which the Port Authority would have paid for the property.
(3) We are all agreed that the Statute of Limitations had barred recovery by the Wechsler executors of the $8,700 as money had and received by Byrne and Bowman for the use of the Wechsler estate.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LEWIS and DESMOND, JJ., concur with FINCH, J.; LOUGHRAN, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur.
Judgment accordingly. *Page 298