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Fourth Department, March, 1910.

(Vol. 137. I do not deem it essential to analyze the several cases cited by counsel, but call attention to Potts v. Mayer (86 N. Y. 302); Cole v. Sweet (187 id. 488); Tooley v. Bacon (70 id. 34).

Second. The other points made by the plaintiff are not well taken.

1. The counterclaim set up by the defendants arose out of the same transaction which was the basis of the plaintiff's claims, and was directly connected with the subject of the action. It was, therefore, available under section 501 of the Code of Civil Procedure. (Ter Kuile v. Marsland, 81 Hun, 420; Empire Feed Co. v. Chatham Nat. Bank, 30 App. Div. 476; Cooper v. Kipp, 52 id. 250, and cases therein referred to.)

2. We think the counterclaim maintainable, though plaintiff's testatrix was living when the action was commenced. She having refused to carry it out repudiated it. (Schell v. Plumb, 55 N. Y. 592.)

3. There seems to have been an adequate consideration for the agreement.

All concurred, except McLENNAN, P. J., and Kruse, J., who dissented, in an opinion by MoLENNAN, P. J. MOLENNAN, P. J. (dissenting):

The action was commenced on the 26th day of April, 1906, by M. Emeline McMillan, to recover the possession of certain chattels described in the complaint of the agreed value of $2,215.70, alleged to be the property of the plaintiff, and to have been wrongfully detained by the defendants. It is alleged in the complaint that before the commencement of the action said plaintiff demanded the possession of said property, which was refused. Judgment was demanded that the possession of the chattels described in the complaint be awarded to the plaintiff ; that the value thereof be fixed at $2,215.70, which was subsequently conceded, to be paid by the defendants to the plaintiff if possession of the same was not delivered to her.

The defendants, who are husband and wife, answered separately, each denying that Mrs. McMillan was entitled to the possession of the chattels in question because of an oral agreement alleged to have been made between her and the defendant Pauline A. Piffard

App. Div.]

Fourth Department, March, 1910. eight years before the commencement of the action, by which it is alleged that said Pauline A. Piffard agreed to purchase the Piffard homestead at Piffard, N. Y., establish therein a home for herself, her family and Mrs. McMillan, and maintain the same during the lifetime of Mrs. McMillan ; to set aside certain rooms in said home for the exciusive use of Mrs. McMillan and her maid, furnish heat, light and suitable board for herself and maid, furnish feed for her horses at cost, and that Mrs. McMillan, Mrs. Piffard and her family, during the lifetime of Mrs. McMillan, should live together in the Piffard homestead as one family.

It is alleged that by such agreement Mrs. McMillan agreed to place and leave in said home certain articles of property and furniture she then owned and possessed, the same to be left and to remain in said house for the use therein of Mrs. Piffard and her family and Mrs. McMillan during her lifetime, and that at the death of Mrs. McMillan said furniture and property should become the sole property of Mrs. Piffard.

It was also alleged that Mrs. McMillan agreed that she would pay towards the maintenance of said home for board, rooms and home privileges for herself and maid, stabling for her horses and barn for her carriages, $100 a month for at least eight months of each year, and $100 a month for such time each year as Mrs. McMillan should stay at home in excess of eight months.

It is further alleged in defendants' answers that Mrs. McMillan, in consideration of said agreement to be kept and performed by the defendant Pauline A. Piffard, and in consideration of certain prior services rendered to Mrs. McMillan by Mrs. Piffard, agreed to leave Mrs. Piffard by will a certain interest in a part of real estate situate on the east side of Broadway, in the city of New York, of the value of $47,833, and it is alleged that the agreement was that in case Mrs. McMillan should sell or otherwise dispose of her interest in said real estate, or for any reason fail to leave her aforesaid interest to the defendant, then she would leave the defendant by will an amount in cash or securities equal in amount to the value of Mrs. McMillan's interest in said real estate.

It is further alleged in the answers that pursuant to the provisions of the aforesaid alleged agreement the defendant Mrs. Piffard purchased the Piffard homestead and in all respects carried out and per. Fourth Department, March, 1910.

(Vol. 137. formed the agreement on her part. It is then alleged that Mrs. McMillan on or about the 1st day of June, 1899, pursuant to the provisions of said agreement, placed or left in said home in the possession of the defendant the property and furniture aforesaid, including the articles mentioned in the complaint, and that said articles have since remained in the possession of the defendant, and that by virtue of her rights, interest and special property in said chattels she is lawfully entitled to the possession thereof.

For a second defense and counterclaim the defendant Pauline A. Piffard, realleging the above facts, alleged that Mrs. McMillan, the plaintiff, had failed and neglected to keep and perforin the said agreement on her part, lad removed or caused to be removed from said home certain of the aforesaid property and furniture of the value of $1,200, and although requested by the defendant to carry out and fulfill the provisions of said agreement, that the plaintiff, Mrs. McMillan, had wholly neglected and refused to comply with the provisions of said agreement and had denied and repndiated said agreement to the damage of the defendant in the sum of $60,559.

The then plaintiff, Mrs. McMillan, served a reply to such answers in which she admitted, in substance, the agreement whereby the said defendant agreed to furnish board and accommodation to plaintiff and her maid at her home in Piffard, N. Y., and the use of her stable and barn for the care of plaintiff's team, carriages and harnesses, at the agreed and stipulated price of $100 a month. It is alleged that it was further stipulated that the maid employed by the plaintiff, when her duties and services were not required by the plaintiff, should assist in the work incident to the home of the said defendant, free of charge; also, that the plaintiff should employ and pay for the services of a coachman to drive such team and care for same and the carriage and harnesses belonging to such outfit; to pay for the food and provision of said team at the actual cost thereof, and it is alleged that it was further agreed that in consideration of the furnishing of said team with pasturage, hay and straw, free of charge, by the defendant, she was to have the services of such coachman and team, carriage and harnesses, free of charge, at all times when plaintiff should not require the same for her own use and enjoyment.

The plaintiff in her reply denies that she ever made or entered into any agreement with the defendants, or either of them, to the

App. Div.]

Fourth Department, March, 1910. effect that the property which this action was brought to recover should belong to or become the property of the defendants upon her death.

Plaintiff further alleged that the said defendant Pauline A. Pif. fard did not keep her agreement as to providing a suitable home for the plaintiff; that she and her husband studiously ill treated, insulted and misused her and to such an extent that she was forced to leave the home which they had assumed to provide for her.

In such reply it is further alleged that so far as the counterclaim alleged as a defense to the cause of action relates to the alleged agreement of the plaintiff to make testamentary or other disposition of her interest in the real estate or the avails or proceeds thereof, it did not accrue before the commencement of the action and was, therefore, not available as a defense.

The issues thus joined were, first, were the defendants entitled to retain possession of the chattels in question because of the alleged agreement made in respect thereto by Mrs. McMillan, to wit, the agreement on her part that at her death such chattels should become the absolute property of the defendant Pauline A. Piffard ; and, second, was the agreement alleged to have been made in respect to the disposition of the real estate of the plaintiff, or its value, available to the defendants at the time their answers were served because the contingency which by the terms of the alleged agreement, to wit, the death of Mrs. McMillan, had not arrived ?

After the service of such answers and the reply of Mrs. McMillan, who was an old lady past seventy years of age, and an invalid, and whose death was expected, she was examined upon commission for the purpose of preserving her testimony. Upon such examination she testified, in substance, that the property and chattels, for the possession of which this action is brought, were owned by her; that she was entitled to their possession ; that she had never transferred or conveyed her interest in them to the defendants or either of them. Sometime after such evidence was given, Mrs. McMillan died and her executrix was substituted as plaintiff in this case. When the case finally came on for trial the plaintiff read in evidence the testimony given by Mrs. McMillan, taken upon the commission, substantially to the effect above indicated, and rested. The executrix had thereby established prima facie a cause of action.

Fourth Department, March, 1910.

[Vol. 137. The defendants were then permitted to testify, over plaintiff's objection and exception, as to the agreement alleged to have been made between them and Mrs. McMillan, substantially as set forth in their respective answers. Such evidence and all of it was objected to because inadmissible and incompetent under section 829 of the Code of Civil Procedure, and the first question presented by this appeal is whether or not such objection was well founded.

I am inclined to concur with brother WILLIAMS in the proposition that the plaintiff having read in evidence the testimony of her testatrix to the effect that she, such testatrix, was the owner of the chattels in question; that she had title to the same and had in no manner parted with such title to the defendants or otherwise, such defendants were entitled to testify in effect that the testimony of such testatrix was untrue because of the agreement which, as they alleged, was entered into between them and her, to wit, that it was agreed that such chattels should be the absolute property of the defendants upon the death of such testatrix, and if such evidence was believed by the jury, of course it would have defeated plaintiff's alleged cause of action.

But the defendants did not stop there. They were permitted, over plaintiff's objection and exception, to establish their counterclaim about which the testatrix had not been examined and had given no evidence, and which involved the proposition that the testatrix had agreed that the defendants upon her death should be entitled to a conveyance of her interest in her New York real estate of the value of $47,833, or in case such real estate had been transferred by the testatrix prior to her death, of a sum of money equal to such value, and as a result of such testimony so given by defendants over plaintiff's objection, the jury rendered a verdict in defendants' favor for the value of the interest in such real estate and the interest thereon since the death of Mrs. McMillan, which amounted to $53,603.72, and the total judgment so rendered, which included the value of the personal property which had been removed and the interest thereon, amounted to $55,818.92.

I conclude that, assuming the defendants were competent witnesses to prove that a contract had been entered into respecting the title to the personal property, which was the subject of the action brought by Mrs. McMillan, and to establish that by reason of such

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