
    Eliza Davis, Resp’t, v. Bertha K. Myers, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 11, 1895)
    
    1. Estoppel — Equitable.
    A statement by the defendant that he had invested at ten per cent, money placed in his hands" by another estops him from denying the investment and from claiming credit for excess paid over legal interest.
    2. Usury — Question for jury.
    Usury was held, under the facts and circumstances of this case, to be a question for the jury.
    3. Costs — Extra allowance.
    Where it is the duty of an executrix to defend and she partially succeeds, she is not liable for costs and extra allowance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, and also from an order granting costs and extra allowance.
    
      E. J. Meyers, for app’lt; Geo. Putnam Smith, for resp’t.
   Van Brunt, P. J.

This action was to recover from the defendant, as executrix of Herrmann Koehler, deceased, the •sum of $4,000, with dividends thereon from the 1st of January, 1894, at the rate of ten per cent, per annum. The evidence in this ease showed that prior to June, 1881, the plaintiff had saved $4,000, and had deposited it in different savings banks in the city of New York; and that on the 23d of June she gave the money to Herrmann Koehler, upon the representation by said Koehler that he could invest it for her, and it would bring ten per cent., and that she could have it at any time by giving thirty days’ notice. Subsequent to that time and down- to his death, in April, 1889, the said Koehler paid to the plaintiff the sum of $400 per annum, and after his death the defendant continued such payments until the 1st of January, 1894. The defendant then having refused to pay the claim of the plaintiff, this action was brought; and, the case being submitted to the jury, they rendered a verdict in favor of the plaintiff, and the court granted costs and allowances; and from the judgment thereupon entered, and from an order denying motion for new trial, and also from an order granting such costs and allowances, this appeal is taken.

It is urged upon 'the part of the defendant that the transaction between the plaintiff and Koehler was only a loan or forbearance of a sum of money due. with interest reserved at the rate of ten per cent, per annum, and therefore usurious and void. We think this question was properly submitted to the jury. There is no suggestion to the effect that usurious interest was to be paid, but the representation seems to have been that this money could be so invested by Koehler that it would earn ten per cent, per annum for the plaintiff; and it was on this representation that the plaintiff delivered the money to Koehler, and there was nothing to show but what the plaintiff believed this to have been the nature of the transaction. There seems, therefore, to be no reason for interference with the finding of the jury upon this subject.

It is claimed that it was error to admit the letter of Mrs. Koehler, the defendant, without connecting it with the defendant’s testator by proof of authority or ratification. It seems to us that the record in this case contains ample evidence of ratification, if not of authority. The plaintiff produced a book, the entries in which, except a few of the latter ones, were made by Mr. Koehler himself. It is headed as follows: “ Herrmann - Koehler, in Acct. with Miss Eliza Davis.” In this book he acknowledges to have received between the 23d of June, 1881, and the 10th of October, 1883, the sum of $4,000, and he pays her from that time down to his death ten per cent, upon that amount, which clearly connects the letter of Mrs. Koehler to the plaintiff with the transaction. It shows that Herrmann Koehler received the money upon the terms stated in the letter. This seems to be ample evidence of ratification.

It is further urged that the court erred in not allowing, as payment on account of the principal, the excessive interest paid above the lawful rate. It seems to be a sufficient answer to this proposition that, as long as Mr. Koehler lived, the plaintiff was under the impression that her money was invested and was yielding the amount of income which' Koehler paid to her. He had possession of that money under those circumstances, and it will not lie in his mouth to say that his statements in regard to the investment of-the money were false, and, therefore, that he should be credited with the excess over legal interest. The same principle will apply to his executrix. She kept possession of the money, and paid the ten per cent, to the plaintiff, leaving the latter to suppose that her money was still invested and yielding this income; and she cannot now be heard to say, as against the plaintiff, that her representation made by these payments were false. If she has made excessive payments, and has thereby rendered herself liable as executrix of the estate, she must settle it with her cestui que trustent. After having induced the plaintiff to leave the money with her under such a contract, she cannot now be heard to say that her representations of income were untrue.

It is further urged that the executrix was justified, as matter of law, in refusing to pay the claim made by the plaintiff. The action was brought* to recover $4,000, with dividends at the rate of ten per cent. The recovery was for $4,000 with interest at six per cent. It seems to us that the executrix would not have been justified in paying the claim as presented, because after a demand had been made for the money and a refusal to pay, there was simply a breach of contract, with liquidated damages, which drew legal interest and nothing more. The claim being made for ten per cent., it became the duty of the executrix to defend ; and, she having partially succeeded, it is difficult to see how it could be said that she has unreasonably neglected to pay.

The question in regard to the presentation of the claim,.within the statutory time does not seem to be of any moment, because, by reason of the payments which the executrix made on account of the money alleged to have been invested, there was a recegnition of the claim, which, until some question was raised, made it unnecessary for the plaintiff to take any steps as against the estate.

We think the judgment should be modified by striking therefrom the costs and allowances, and, as modified, affirmed, without costs.

All concur.  