The reference was made under the statute providing for the hearing and determining of claims against the estate of a deceased party. After hearing the evidence, a report was made rejecting the claims, and judgment has since been entered upon such report.
It has been objected that the motion to set aside, which was made after the judgment, was too late. But the practice as it now has become settled is against the validity of such an objection. Beyond that the application was heard under the practical sanction of the general term, for when the ease was before it on a preceding occasion, the appeal on the application of the respondent was then dismissed, because the motion had not been first heard at the special term, and without prejudice to the right still to make such a motion. It was to comply with the rule of practice requiring the motion to be first made there in an application of this nature, that the motion was made which resulted in the order from which the appeal has been taken. And the court was not deprived of the power to hear it simply because a judgment had in form been entered.
It has also been claimed that the case was not served in time, but as it was in fact settled and made the foundation of the motion before the- special term, it is too late now for the respondent to derive any advantage from that objection. The case must consequently be regarded as regularly before this court for the determination of the merits of the controversy.
All the claims, except one, which were made the subject of investigation at the trial, were owing from Holborrow, the deceased intestate, to Schreyer individually. For the purpose
This was the doctrine of the prevailing opinion, and it is evident from it that an assignment of this nature was not intended to be sustained by the decision. The dissenting opinion of Denio, J., was emphatic that the assignment was legally inoperative.
Upon that subject he stated that the paper which the executor, as an individual, had made and signed, and then kept in his own possession, was of no legal force (Id., 429). And that result seems to follow from the circumstances that the person executing such a paper and the individual receiving it are one and the same party, incapable of contracting with or transferring interests from himself as an individual to himself as an executor. Because of that inability no title was transferred to Schreyer, as executor, by the assignment, which he himself executed individually, and the claims intended to be affected by it were therefore properly rejected by the referee. But a further claim was presented and made a subject of the reference, which had accrued to the testatrix in her lifetime, for the rent of the second floor and basement of 355 West Forty-second street. This had become vested in
The evidence given upon the hearing directly tended, without contradiction, to establish the fact that this property belonged to the testatrix, and it was shown to have been occupied by the intestate Holborrow, with his family, from some time in the spring of 1876, until November, in which month Holborrow died.
The agreement for the letting of this portion of the premises was made by the executor, as the husband and agent of his wife, with Holborrow, the intestate, and it was proved by the witness Cains, who was not interested in the controversy. He stated that he was present at a conversation, in the spring of 1876, between Holborrow and Schreyer in front of the premises 355 West Forty-second street; that these two persons stood in front of the building talking together at the time, and Schreyer addressing the witness asked him why Holborrow should not take the first floor of that building from him at thirty-five dollars per month because he was collecting rent for him; that it was convenient for his business and the rent was ten dollars less than for anyone else. The witness added that Holborrow said it was more rent than he wanted to pay. But finally he agreed to rent the same for one year, and without knowing whether the agreement was ever carried out he testified that Holborrow moved in; that he considered it a conditional agreement because Schreyer agreed to make alterations and repairs.
There is nothing in the case subjecting the statements of this witness to discredit or suspicion in any respect whatever, and for that reason it was the duty of the referee to accept his evidence as truthful (Elwood agt. Western Union Tel. Co., 45 N. Y., 549, 553). That was sufficient to prove the letting of the premises and their occupancy by Holborrow and his family, especially as it was followed by' the further uncon
Davis and Beady, JJ., concurred.