MARY MALONE, Respondent, v. KATHERINE HIRSCH,

Appellant.*

(County Court, Saratoga County, October, 1916.)

Contract-check given for rent

mistake as to street number of

leased premises - lack of consideration.

APPEAL from a judgment rendered in the city of Saratoga Springs in favor of plaintiff.

Dunlavey & Sweeny, for appellant.

Leary & Fullerton, for respondent.

SALISBURY, J. This is an action to recover the sum of $250 from the defendant on a certain check dated July 21, 1916, drawn by defendant and payable to the plaintiff, or to her order, and on which payment was refused by the bank when presented to it on the ground that the defendant had directed the bank not to pay the same. The answer alleges that the check was given by the defendant to the plaintiff for rent of premises in the city of Saratoga Springs, and that when given the defendant believed that she was renting premises known as No. 89 Nelson avenue, and that the premises which the plaintiff claimed to have rented were premises known as No. 39 Nelson avenue. Upon the trial of the action it appears that on or about July 3, 1916, the plaintiff wrote a letter to a Mrs. Byrne, stating in substance that she, the plaintiff, was thinking of renting her house, five rooms and bath up stairs, and four rooms down stairs; parlor, dining room, sitting room and kitchen. That the house was equipped with hot and cold water, electric lights and telephone, and that her price was $250 per season, and further stated in substance that if the person to whom the letter was

Affirmed by the Appellate Division, Third Department, November 28, 1917.

addressed should not desire the house, but if she should hear of any persons wanting to rent a house, if she would advise them of plaintiff's property being for rent, she would be grateful and signed her name as follows: Mrs. Mary Malone, No. 89 Nelson avenue, Saratoga Springs, New York. The evidence discloses that the premises described were not the premises at No. 89 Nelson avenue, but the premises known as No. 39 Nelson avenue. The evidence also shows that the defendant had in her possession, previous to the giving of the check, the letter from Mrs. Malone, which had been given by Mrs. Byrne to the plaintiff. Evidence further shows that Max Hirsch, the husband of the defendant and who had, during all of the time of the renting of the house, acted as agent for the defendant, was very familiar with the neighborhood at No. 89 Nelson avenue, as he had formerly lived next door. It further appears that about the twenty-first of July, Hirsch, who had received the letter written by the plaintiff to Mrs. Byrne, called up Saratoga from New York and talked to a party who said she was the plaintiff in the action and had a talk with the party in which he asked her if she was Mrs. Malone, to which she replied " yes; " he asked her about the house, if there was a toilet and bath; told her that Mrs. Byrne had handed her a letter and that he understood that No. 89 Nelson avenue was for rent; she said she would let him have the house for $250, at which time Hirsch said he would send up the rent and look at the house and, if suitable, would take it; that a maid, unfamiliar with Saratoga, came up to Saratoga on Saturday with the check for $250. The defendant came up on Sunday; that when the defendant came on Sunday and found that the house which had been described in the letter was No. 39 Nelson avenue, he at once told Mrs. Malone that he did not like the house at all, and stated that it was not the house that he had bargained for; that he did not like the neighborhood; that it was

not the house that he had paid for and that the defendant asked for his check back.

In order that there should have been a legal contract of renting, the minds of the parties must have met. I am satisfied, from a reading of the evidence, that in this matter the minds of the parties did not meet. Hirsch, who was familiar with the neighborhood No. 89 Nelson avenue, had a right to assume and did assume that he was renting the premises known as No. 89 Nelson avenue. His whole attitude as shown by the evidence is indicative of that fact. The letter written by the plaintiff describes certain property, and one reading the letter would be justified in believing from the address that the premises described therein were No. 89 Nelson avenue. The plaintiff, however, had intended to and had accurately described the premises at No. 39 Nelson avenue, but there is nothing in the letter to indicate to any one that the premises therein described were other than No. 89 Nelson avenue; that before seeing the premises the defendant sent a maid, with the check for $250 to pay the rental; that the maid came on Saturday, on the evening of that day, and on Sunday morning defendant's agent, Hirsch, came, saw the premises and immediately stated that they were not the premises that had been rented and that he would not take them, and at that time demanded the return of his check. Upon the refusal of plaintiff, he stopped payment thereof.

The trial court gave judgment for the plaintiff. I am satisfied that this was error. There was no valid and binding contract, and the check was given without a legal consideration. The judgment must, therefore, be reversed.

Judgment reversed.

INDEX

Evidence

Counterclaim

-

ACCOUNT STATED.
What constitutes
Arbitration
Appeal. Where plaintiff's cause of action and defendant's counter-
claim were both predicated upon an account stated, and defendant,
in support of its contention that the receipt by plaintiff without
objection of a statement prepared by an audit company, plus the
implied approval thereof evidenced by plaintiff as treasurer of
defendant signing the check given to the audit company in payment
for services in preparing the account, and its deposit by him or its
continued presence in defendant's safe, constituted an account
stated between plaintiff and defendant, in addition to testimony
brought out on plaintiff's cross-examination as to the circumstances
under which the account had been prepared, and the conversations
between him and the only real stockholder of defendant, its presi-
dent and manager, showed that plaintiff had not objected to the
account, and substantially all the evidence on defendant's affirma-
tive case was that elicited from plaintiff, because between the time
of the preparation of the account and the commencement of the
instant action defendant's president and treasurer had died; and
not only is there nothing in the testimony to warrant the con-
clusion that plaintiff and defendant's president and manager agreed
to accept as final, either by way of an account states or as an arbi-
tration, the report of the auditor, but all the circumstances plainly
indicate that what was sought from the accountant was either a
corroboration or a correction of the statement prepared by defend-
ant's bookkeeper from the books of defendant, the denial of a
motion to dismiss the counterclaim was reversible error and a judg-
ment in favor of defendant thereon, entered upon a verdict, will
be reversed and a new trial granted. Johnstone v. Butler, Inc., 52.

ACCOUNTING.

1. Equity Pleading Actions Release Corporations
Executors and administrators -What operates as a discharge and
satisfaction of claim against defendant as surviving joint tort fesor.
-Where in an action, one of a series against various directors of
the plaintiff, for an accounting in equity for misconduct while each
of the several defendants had been such directors, it appeared that
during the pendency of a similar action against a non-resident
director he died, and, upon a holding of this court that his admin-
istrators could be brought before it unless they were duly served
with a supplemental complaint, plaintiff in that action compro-
mised its claim against the administrators in consideration of a
certain sum and executed a general release of all claims against
the decedent's estate. Held, that the circumstances under which
the release was executed clearly indicated that there was no inten-
tion to release the defendant in the present action and that a
defense pleaded in his supplemental answer to the effect that the
release given to the non-resident director's administrators operated

as a discharge and satisfaction of plaintiff's claim against defendant
herein as a surviving joint tort feasor was demurrable. German
American Coffee Co. v. O'Neil, 165.

Objections to account

Actions

--

Con-

2. By administratrix
tracts Executors and administrators - Retainer Attorneys
Services. Upon the settlement of the accounts of an administra-
trix, it appeared that the only asset of the estate was the sum of
$17,194.36, the total amount of recovery in an action for damages
resulting in decedent's death. The accountant showed a payment
to the attorney retained by her of $8,597.18, fifty per cent of the
amount recovered by her, and the special guardian objected to the
payment thus made upon the ground that it was excessive and
unreasonable in amount and not a proper credit to the extent
claimed. It was contended that the contract of employment was
of no effect and that the only question before the court was whether
the amount the administratrix paid her attorney was a fair and
reasonable compensation for the services shown to have been ren-
dered. In dismissing the objections, it was Held, (1) that as the
right to bring an action is given by the Code to the administratrix,
and as it was necessary for her to have the services of an attorney
to do this, she must be deemed empowered to engage such services,
and, as an incident thereto, to agree upon the compensation that
should be given therefor with the qualification that the amount
so agreed upon is fair and reasonable; that the surrogtae may not
upon the final accounting of the personal representative entirely
disregard a contingent contract for legal services and proceed to
fix the value of the services upon the theory of quantum meruit
and surcharge the account if it appears that the compensation paid
exceeded the value of the actual services rendered. (2) That the
contract must govern unless it is unconscionable or unreasonable
and that, while retainers of fifty per cent have been held uncon-
scionable in specific instances and are generally regarded with dis-
favor, such retainer as a matter of law is not excessive and does
not render the contract unconscionable; (3) That each case must
be decided upon its own facts, and that whenever such an agree-
ment comes before the court on objection it will be carefully scru-
tinized and the personal representative will be required to show
that the payment is reasonable and conscionable before it will be
allowed. Matter of Weber, 635.

3. Executors and administrators · Wills Trusts Guardians
Who entitled to receive income. Upon the judicial settlement
of the account of an executor it became necessary to construe a
provision of the will set out in full in the opinion in which the
testator attempted to appoint a guardian of an infant who was then
surviving. Held, that the only question necessary to be determined
upon the accounting was to whom the legacy mentioned in the
said provision was to be distributed; that, as the infant's father
was living, the attempted appointment of a guardian was ineffectual,
yet the person nominated had a power in trust over the property
which the infant received under the terms of the will with the same
right as to its care, custody and control that a guardian would have