Edward W. S. Johnston, for appellant. O'DWYER, J. The complaint alleges that on or about the 25th day of November, 1896, in a certain proceeding in the surrogate's court of the county of Kings, entitled "In the Matter of the Judicial Settlement of the Account of Ann Murphy, as Administratrix of the Goods, Chattels, and Credits of Patrick Murphy, Deceased," a decree was duly made and entered, judicially settling the accounts of Ann Murphy as such administratrix, and ordering, adjudging, and decreeing that she pay sums amounting to $753.40 to Max Reinach, as assignee of the shares or interests of Edward Murphy and Elizabeth Aaron, son and daughter, respectively, of Patrick Murphy, the said deceased, as and for the shares to which they were entitled as the only next of kin of said Patrick Murphy, deceased. That defendant was a party to said accounting, and had due notice of the steps taken therein, and the entering of the aforesaid decree. That thereafter, and on or about November 25, 1896, said Ann Murphy, pursuant to the aforesaid decree, paid the aforesaid sums, amounting to $753.40, to the said Max Reinach, as assignee of the shares or interests of the said Edward Murphy and Elizabeth Aaron. That thereafter, and on or about the 5th day of January, 1897, the decree so entered on the 25th day of November, 1896, was duly reopened by the said surrogate of Kings county. That the defendant was a party to the application to open said decree, and had due notice thereof, and was represented by counsel on all proceedings thereon and the entry of said order. That thereafter, and on or about the 15th day of April, 1897, in the surrogate's court of the county of Kings, in the said proceedings entitled "In the Matter of the Judicial Settlement of the Account of Ann Murphy, as Administratrix of the Goods, Chattels, and Credits of Patrick Murphy, Deceased," a new decree was duly made and entered, modifying and amending the said decree of November 25, 1896, by striking therefrom and vacating the order, judgment, and decree therein contained that Ann Murphy pay to Max Reinach, as assignee of Edward Murphy and Elizabeth Aaron, sums amounting to $753.40, and substituting in place thereof that the said administratrix, Ann Murphy, pay to said Max Reinach, as such assignee of Edward Murphy and Elizabeth Aaron, the shares to which they would be entitled, amounting only to the sum of $350.14. That said defendant was a party to the application for said new decree of April 15, 1897, and had due notice thereof, and was duly represented by counsel thereon, and on the making and entry of the decree. That the amount of $753.40 paid by said Ann Murphy to Max Reinach, as alleged in paragraph 4, was $413.25 in excess of the amount to which he was entitled, as determined by said decree of April 15, 1897, and that said defendant was overpaid the said sum of $413.25 which he held to the use of the said Ann Murphy, as administratrix, as aforesaid. That thereafter, and on or about the 24th day of April, 1897, the said Ann Murphy, as administratrix as aforesaid, by an assignment in writing, duly executed under seal, duly assigned, transferred, and set over unto this plaintiff all her right, title, and interest in and to all rights which she had or and 85 New York State Reporter. possessed under said decrees, and each of them, against this de fendant, for the recovery of the money so overpaid to him, and all claim and all demand of every nature which she had against the said defendant by reason of such overpayment. That payment of the said sum of $413.25 was duly demanded of the defendant by the plaintiff on the 8th day of May, 1897. That said defendant has failed, neglected, and refused to pay the said sum, and that the whole amount is still due and owing to this plaintiff. None of these allegations are denied, except that appellant denies he was overpaid, and that he holds the money so overpaid to the use of said administratrix or otherwise, and that there is anything owing. The answer then sets up, for a further, separate, and distinct defense to the complaint, "that prior to the 25th day of November, 1896, Edward Murphy and Elizabeth Aaron requested this defendant to purchase from them their interest in the estate of Patrick Murphy, deceased, and stated and represented to this defendant, as an inducement to purchase the same, that they, the said Edward Murphy and Elizabeth Aaron, were the only heirs at law and next of kin of the said decedent, Patrick Murphy. That thereupon, and before this defendant purchased such shares or interests, he, this defendant, inquired of Ann Murphy whether the aforesaid statements and representations were true and correct, and that the said Ann Murphy then and there stated and represented to this defendant, in order to induce this defendant to purchase such shares. that the said Edward Murphy and Elizabeth Aaron were the only heirs at law and next of kin of the said decedent, Patrick Murphy. That this defendant, believing such representations and statements so made to be true, and being induced thereby and relying thereupon, did, in good faith and without any knowledge of the falsity of such alleged statements and representations, purchase from the said Edward Murphy and Elizabeth Aaron their interest in such estate, believing at the time that Edward Murphy and Elizabeth Aaron were the only heirs at law and next of kin of the said Patrick Murphy, deceased. Upon information and belief that such statements were false and untrue, and that the said Edward Murphy, Elizabeth Aaron, and Ann Murphy knew or should have known, and each of them knew or should have known, that such statements and representations were false and untrue when made as aforesaid. That this defendant received all moneys named in the complaint as assignee of the said Edward Murphy and Elizabeth Aaron, and not otherwise; and upon information and belief that no action at law or otherwise has been brought by the said Ann Murphy, individually, or as administratrix, or by the plaintiff against the said Edward Murphy and Elizabeth Aaron, or either of them." The defendant claims that this cause of action is the personal claim of the administratrix, and that this action is the personal action of Ann Murphy; that although she paid the money out as administratrix, which is admitted, yet she must sue in her own right to recover it. There is no proof whatever that Ann Murphy knew at the time it is alleged she made the representations that they were false. The assignment of Edward Murphy to the defendant is dated April 20, 1896. The assignment of Elizabeth Aaron to the defendant is dated November 20, 1895. The first decree was entered November 25. 1896. The second decree was entered April 15, 1897. It is no defense to an action brought by an executor or adminis trator, as such, to recover assets of the estate in the hands of defendant, or for the conversion thereof, that plaintiff has in his individual capacity been guilty of wrongdoing. The maxim, "Ex turpi causa non oritur actio," does not apply. Wetmore v. Porter, 92 N. Y. 7682; Fellows v. Longyor, 91 N. Y. 324-331; Deobold v. Oppermann, 111 N. Y. 531-539, 19 N. E. 94; Hood v. Hayward, 124 N. Y. 1-24, 26 N. E. 331; Boyle v. St. John, 28 Hun, 454, 455; Place v. Hayward, 117 N. Y. 487-492, 23 N. E. 25; Colt v. Lasnier, 9 Cow. 320, 321. It is difficult to understand how an executor or administrator could bind the assets of his testator or intestate by an estoppel, when he could not by the most solemn contract known to the law. Austin v. Munro, 47 N. Y. 360; Rathbone v. Hooney, 58 N. Y. 463–467. Bigelow, Estop. (5th Ed.), at page 598, says: "The misrepresentations of a trustee in respect of the trust, to one having notice that it is such, will not work an estoppel upon an innocent cestui que trust. There is no case, it has recently been declared from the bench, in which a trustee, having made a fraudulent representation by which he was bound, or even a fraudulent conveyance after his legal title was confirmed, he still being a trustee only, has thereby deprived of their property the person beneficially entitled to the estate." See, also, Sellars v. Cheney, 70 Ga. 790-793. And when a cause of action accrues to one who is an executor or administrator in a matter affecting the estate, after the death of his testator or intestate, the executor or administrator may, when the recovery will be assets, sue in his representative character or in his own name, at his option. 7 Am. & Eng. Enc. Law, 362; 2 Williams, Ex'n 7th Am. Ed.) 77-81; Bingham v. Bank, 41 Hun, 377, 378, approved Buckland v. Gallup, 105 N. Y. 453-457, 11 N. E. 843; Sperb v. McCoun, 110 N. Y. 605-610, 18 N. E. 441; Schouler, Ex'rs, 292; Zimmerman v. Kinkle, 108 N. Y. 282, 287, 15 N. E. 407; Kane v. Paul, 14 Pet. 33; Hood v. Hayward, 124 N. Y. 1-24, 26 N. E. 331; Colt V. Lasnier, 9 Cow. 320; Wetmore v. Porter, 92 N. Y. 76–82. In the ease at bar the question is presented whether the recovery sought here is assets of the estate, and that question must be determined. It appears that a decree was entered adjudging that Ann Murphy, as administratrix, had in her hands $750.13, to which the next of kin, as it was then supposed, of Patrick Murphy, to wit, Elizabeth Aaron and Edward Murphy, were entitled. As Max Reinach, the defendant, had purchased these shares, the decree directed Ann Murphy, as administratrix, to pay the defendant out of the estate of Patrick Murphy in her hands $750.13, which she did. In a subsequent proceeding, that decree was modified, and the decree to pay Max Reinach $750.13 was vacated, and she, as administratrix, was directed to pay to Max Reinach only $350.14. Max Reinach was a party to those proceedings. Here was an adjudication that the defendant held $113.40 of the assets of the estate of Patrick Murphy, to which he was not entitled. This is not an action based upon a contract of the administratrix. The payment made under the decree of November 25, and 85 New York State Reporter. 1896, was not a voluntary payment. It might have been enforced by contempt proceedings. The element of assent which is necessary to every valid contract is wanting. It has been held that an administrator making a payment under a mistake of fact may recover it back in that capacity. Clark v. Houghham, 2 Barn. & C. 149-153, approved Bogert v. Hertell, 4 Hill, 508. The plaintiff occupies the same position that Ann Murphy, as administratrix, occupied, and the objection that it was outside the lawful powers of the administratrix to assign a claim due the estate was not well taken. Rogers v. Squires, 98 N. Y. 53-56. Code Civ. Proc. § 502, subd. 3; People v. Anthony, 7 App. Div. 132, 135, 136, 40 N. Y. Supp. 279. By the assignment, Ann Murphy transferred to the plaintiff all claims or causes of action which she had against said Max Reinach by reason of his having received any part of the estate of Patrick Murphy, it being the intention of this instrument to subrogate the Lawyers' Surety Company of New York to all the right, title, and interest of Ann Murphy, as administratrix of Patrick Murphy, deceased. The judgment should be affirmed, with costs. All concur. (23 Misc. Rep. 248.) DENEHEY v. McCLOUD. (City Court of New York, General Term. ACTION FOR PRICE-EVIDENCE-DISMISSAL. March 28, 1898.) In an action to recover an alleged unpaid balance of an agreed purchase price of a business sold by plaintiff's assignor to defendant, the assignor testified to the agreement for a sale to defendant for $350, of which $50 was paid, and that thereafter the defendant promised to pay more as quick as she could. Held, that this testimony furnished no basis for a dismissal of the complaint on the ground that defendant's agreement was merely to pay when able. Appeal from trial term. Action by David Denehey, administrator of Ellen Denehey, deceased, against Margaret McCloud. From a judgment dismissing the complaint on a trial before a jury, and from an order denying a motion for a new trial, plaintiff appeals. Reversed. JJ. Argued before FITZSIMONS, C. J., and O'DWYER and OLCOTT, Samuel L. Frankenstein, for appellant. O'DWYER, J. The action is brought to recover the sum of $300, being a balance of an agreed purchase price of a half interest in a drygoods store in New York City. The action is brought by an adminis trator, to whose intestate this cause of action was assigned by the original party to the agreement of sale, Maria A. Walsh. The complaint substantially sets forth that Maria A. Walsh, the assignor of said cause of action, and this defendant, entered into a co-partnership for the buying and selling of dry goods under the style of Tanahy & Co., Tanahy being the maiden name of this defendant; that said Maria A. Walsh contributed to the co-partnership business, as her share, the sum of $350, and five months thereafter it was agreed between the said Walsh and this defendant that said Walsh should withdraw from said business, and assign her interest therein to this defendant, in consideration whereof this defendant agreed to pay her the sum of $350; that, pursuant to said agreement, said Walsh did withdraw from said business, and did assign to this defendant her interest therein, and that this defendant paid to said Walsh the sum of $50 on account thereof, leaving a balance due of $300, no part of which has been paid; that this claim of $300 was assigned by said Walsh to the plaintiff's intestate. The answer substantially admits all the allegations of the complaint, except that it denies that the consideration for the sale of the half interest of said business was $350, and avers, to the contrary, that the agreed price was $100, which sum of $100 the defendant did duly pay to the said Maria A. Walsh pursuant to said agreement. The only point in issue, therefore, was whether the original price was $350 or $100, and whether only $50 on account of the $350 was paid, or whether the full sum of $100 was paid. At the trial said Maria A. Walsh was called by the plaintiff, who testified to all the foregoing facts, and the plaintiff rested. The defendant's counsel then moved to dismiss the complaint on the ground that it appeared from the testimony of the said Maria A. Walsh that the defendant agreed to pay her the $350 when she was able; and that, there being no evidence that the defendant was ever able to pay it, the plaintiff had failed to make out a prima facie case, and that hence the complaint must therefore be dismissed. The court remarked that it appeared from the evidence that the defendant promised to pay when she could, and that, in order to entitle the plaintiff to a recovery, there must first be proof of the defendant's ability to pay. But the fact is that there was no evidence that there ever was an agreement made between Miss Walsh and the defendant that she (the defendant) should pay the purchase price only when she could, or only when she was able to do so, and not otherwise. Miss Walsh was recalled, and testified that, after she had received from the defendant the first payment of $50 on account, the defendant promised that she would pay her more just as quick as she could; that she (the defendant) thought that she would pay the balance monthly; and that finally, and about a year thereafter, when Miss Walsh again asked her for the payment of the balance, they both went to a notary public for the purpose of having the defendant execute her note to secure to Miss Walsh the payment of the balance, but a disagreement arose as to the amount for which the note should be made, and nothing was done. The motion to dismiss was then granted, upon the alleged ground that the evidence showed that there was an agreement made between Miss Walsh and the defendant whereby Miss Walsh agreed to postpone the payment of the purchase price of her half interest in the business until the defendant was able to pay it, or until she could pay it; and that hence, before a recovery could be had in this action, there must be affirmative proof of the defendant's ability to pay; and that, such proof being lacking, the complaint must, of consequence, be dismissed; and to this ruling |