
    James Haughian, Appellant, v. Lewis J. Conlan and Others, Individually and as Executors of and Trustees under the Last Will and Testament of Charles P. Haughian, Deceased, and Others, Respondents.
    
      Action under section 2653a of the Code of Civil Procedure to obtain an adjudication that a will was made through undue influence and without testamentary capacity ■ —direction of a verdict—additional allowance of costs. ...
    The testimony of a single witness to the effect that a testator, on an occasion ■. subsequent to. the execution of his will, and about a year and a half previous • to,his death, did not seem to-recognize his brother when, he met him in the . street, relates to an isolated circumstance too insignificant to support the inference that the testator lacked testamentary ¡capacity at the time of the exe- - cution of the will.
    The fact that the lawyer who drew the will was bequeathed,-out of ah estáte 'of . . at.least $225,000,.. legacies aggregating $11,200,.is utterly insufficient to warrant' ■ the inference that the will was the result of undue influence exercised by the lawyer.
    Where in an action, brought under section 2653a of the Code of Civil Procedure, to procure an adjudication that a will is invalid on the grounds of undue • influence and lack of testamentary capacity, no evidence is given from which the jury would have the right to infer that either of such objections was well founded, the court has power and it is its duty to direct a verdict for the defendants.
    In such an action the court has power to award an additional allowance of costs to the successful party.
    Appeal by the plaintiff, James Haughian, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of November, 1902, upon the verdict of a jury, rendered by direction of the court, after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes,
    
      George M. Curtis [C. G. Wheeler with him on the brief], for the appellant.
    
      A. Van Wagoner, for the respondent executors.
    
      Moses Ely [John L. Wilkie with him on the brief], for the respondent General Society of Mechanics and Tradesmen.
   Willard Bartlett, J. :

This suit is an attack under section 2653a of the Code of Civil Procedure upon the' validity of the will of Charles P. Haughian, deceased. The plaintiff is a brother of the testator, and in his complaint alleges that the alleged will was never executed in conformity with the requirements of law; that at the time of the alleged signing thereof the said Charles P. Haughian was of unsound mind and incapable of making a testamentary disposition of his property, and that the execution thereof was secured by the undue influence of Lewis J. Conlan. and other, persons to the plaintiff unknown. Answers were interposed denying these allegations on the part of the executors .and the General Society of Mechanics and Tradesmen of the city of New York, a legatee under the will, and upon the issues thus arising the ease was brought on for trial, and at tiie close of the evidence on both sides the court directed a verdict in fav.pr of the defendants.

The able and ingenious argument of the learned counsel for the ¡appellant has failed to persuade us that any error was committed either in the rulings upon the trial ór in the final disposition of the case.. The plaintiff omitted to prove a single circumstance connected with the actual execution of the will. , The draftsman of the instrument, was Lewis J. Conlan, one of the justices of the City -Court of Hew York, and the witnesses were John Henry McCarthy ¡and J. M. Fitzsimmons, both also members of the same tribunal. As to the testator’s capacity, the only proof adduced upon the tridl was testimony to the effect that the testator had been, in the habit for many years of indulging to excess in the use of intoxicating liquors ; but there was no evidence that this habit had deprived him of; the power of attending to his business affairs, or that it . could have affected or did affect his capacity to make an intelligent disposition of his property. The testimony of one witness, to.¡the effect that the testator on an occasion subsequent to the execution of his .will and about a year and a half previous to his death, did not seem to recognize his brother (the plaintiff) when he met him in the street, is an isolated circumstance, too insignificant of itself to support the inference, that he lacked testamentary capacity at the time when the will .was made.

As to the charge of undue influence, we find nothing to support it except the fact that Judge Conlan, who drew the will, received a legacy of $10,000 thereunder and also ten shares of the capital stock of the Chrome Steel Works; which he afterwards sold for . $1,200. This. is utterly . insufficient to warrant the inference, of undue influence. (Matter of Suydam, 84 Hun, 514; affd., 152 N. Y. 639, on the opinion of Cullen, J., in the court below.) In the case cited there was no evidence whatever to support the charge' of undue, influence,, except that the lawyer and draftsman of the will was given a legacy of $5,000, and the court applied the doctrine of Matter of Smith (95 N.Y. 516) that, the rule which prevails as to .transactions inter vivos between client and attorney does not apply to a will made by the client in favor of his. attorney. In the case at bar the value of the estate appears to have been at least $225,000 and the amount of the legacy to Judge Conlan was not so disproportionately large as to suggest the exercise of any improper solicitation or control on his part.

... In view of the state of the proof at the close of the case, we concur in the opinion expressed by the trial judge that there was nothing from which the jury would have the right to infer either undue influence or lack of testamentary capacity. Under these circumstances the court possessed the power and it was its duty to direct a verdict for the defendants. There is nothing in section 2653a of the Code of Civil Procedure which makes it mandatory upon the trial judge to submit the issues in an action brought thereunder to the determination of a jury. This has been held in effect in every judicial department of the State and also by the Court of ' Appeals. (Hawke v. Hawke, 82 Hun, 439 ; affd., 146 N. Y. 366 ; Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Hagan v. Sone, 68 App. Div. 60 ; Dobie v. Armstrong, 27 id. 520 ; affd., 160 N. Y. 584.)

Nor was there any error in awarding extra allowances to the several defendants. The power of the court to make such allowances in an action of this kind is settled by authority. (Seagrist v. Sigrist, 20 App. Div. 336 ; Delmar v. Delmar, 65 id. 582.)

The judgment should be affirmed.

Goodrich, P. J., Hirsohberg, Jenks and Hooker, JJ., concurred.

'Judgment and order affirmed, with costs. 
      
       See 174 N. Y. 317 — [Rep.
     