
    Fitch M. Davis, as Administrator with the Will Annexed of the Estate of William Bowen, Deceased, Respondent, v. William L. S. Olmsted, as Administrator of the Estate of John H. Coyne, Deceased, et al., Appellants, Impleaded with Others.
    Reported below, 128 App. Div. 915.
    (Argued December 7, 1910;
    decided December 16, 1910.)
    Appeal from a judgment of the Apipellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action io recover possession of assets of the estate of William Bowen, deceased.
    
      Fletcher C. Peck for appellants.
    
      Edwin A. Nash and George W. Atwell for respondent.
   Per Curiam.

The findings of fact in the decision of the court at Special Term are not without some evidence to support them. They sustain the conclusions of law so far as they relate to the draft issued to John H. Coyne in his lifetime by the Society for Savings in the City of Cleveland, Ohio, for $9,981.70, and that the defendant William L. S. Olmsted, as administrator of the estate of John H. Coyne, deceased, and the defendant Edward P. Coyne are liable to the plaintiff for the amount thereof with interest. The findings of fact relating to the payment by the executor of the last will and testament of William Bowen, deceased, to John H. Coyne of $1,000 do not sustain the conclusion of law that defendant William L. S. Olmsted, as the administrator of the estate of John H. Coyne, deceased, is liable to the plaintiff therefor.

It is found that the $1,000 was paid in full or in .part payment for professional services alleged to have been rendered by John II. Coyne to William Bowen in his lifetime, or to his estate after his decease. It is not found that there was any fraud or bad faith in procuring such payment, or that the estate of said Bowen was not at that time indebted to said Coyne for professional services in an amount equal to or greater than $1,000, and it is not shown that the plaintiff ever demanded- of said defendant that he return said $1,000 to him.

The judgment as against the defendant William L. S. Olmsted, as administrator of the estate of John Ii. Coyne, deceased, should be reversed and a new trial granted, with costs to abide the event, unless .the plaintiff stipulates within twenty days to reduce the judgment as against William L. S. Olmsted, as administrator as aforesaid, by the amount of $1,000, and interest thereon from October 10th, 1899, in which case the judgment as so reduced is affirmed, without costs in this court to either party.

The judgment as against the defendant Edward P. Coyne should be affirmed, with costs.

Cullen, Ch. J., Haight, Werner, Willard Bartlett, Hiscock, Chase and Collin, JJ., concur.

Judgment accordingly.  