Opinion
Argued December 18, 1877
Decided January 15, 1878
Clarkson N. Potter, for appellant.
Samuel Hand, for respondent.
The first draft for one thousand dollars drawn by the plaintiff upon the defendant, and which the defendant now seeks to set off against the plaintiff's demand, purported upon its face to be on account of the plaintiff's interest in his father's estate, and the receipt for the same is to the defendant as administrator on account of the plaintiff's "distributive share of said estate." It is quite manifest from the papers referred to, that the money was paid upon the draft on account of such personal estate, and was to be applied thereon at the time, according to the understanding of the parties. The draft for the same amount of a later date directed the defendant to charge the same to plaintiff's account. The defendant testifies that he advanced the moneys for the plaintiff's accommodation on account of anything which he might owe to the plaintiff. It appears that subsequent to the payment of the drafts, which was in 1870, and in the month of September, 1875, the defendant as administrator of his father's estate, presented to the surrogate a verified account of moneys paid and advanced by him to the next of kin of the deceased, with a schedule attached, containing a particular statement of moneys paid to the plaintiff on account of his distributive share, in which he charges the amount for which the drafts in question were given, at or about the date of the same. He thus conceded that both of them were applicable on the plaintiff's share of the personal estate of his father. Whatever criticism may be indulged in as to the language employed in the application and the affidavit accompanying the same, it cannot be denied, I think, that these papers evince an intention of the defendant to apply both of the sums named towards the plaintiff's distributive share of such estate. Such being the irresistible inference from the facts, I think that the defendant is precluded from claiming that such payments were to be differently applied, and that they are a proper and legitimate counter-claim against the rents received by the defendant from the real estate, and it is too late now to interpose such a defense in this action. It is true the surrogate rejected these claims, but his decision was reversed on appeal, in this respect; and as the case now stands, they were properly presented by the defendant, and should have been allowed. The fact that an appeal was taken, and is pending, from the decision of the General Term, of itself, makes no difference and cannot change the aspect of the case, or aid the defendant, and it is enough that the law, as declared, held them to be legitimate. But in no event is this controlling, for the affidavit of the defendant as to the original application is conclusive against the defendant, and he cannot now withdraw his claim from his account rendered under oath, and use the same as a set-off in this action against the plaintiff's demand. Such a position is inconsistent with the acts and declarations of the defendant heretofore, and cannot be upheld upon any legal ground. He has made his election, and is precluded from claiming a right to change his ground.
It is urged, in support of the defendant's position, that if he should not succeed in his claim against the estate, it may cause the loss to the defendant of the amount of the drafts. The answer to this is. First, that as the defendant has elected as to the fund out of which the drafts should be paid, he must abide the result of his election, within well-settled rules of law. Second, if the defendant succeeds in having the claim allowed upon the accounting, according to the decision of the General Term, and the law of the case as thus settled, and in making an offset of the `same in this action, he will be paid twice for the same amount. While there may be difficulties in either contingency, the case must after all be determined upon the application of payments already made; and, in view of all the facts, the defendant should be bound thereby. He has chosen to stand in this position, and has no reason for complaint if he is held to it.
The judgment must be affirmed.
All concur.
Judgment affirmed.