
    John B. Scholey, Executor, etc., Respondent, v. Anne E. Mumford, Survivor, etc., Appellant.
    (Argued March 23, 1876;
    decided April 4, 1876.)
    Plaintiff’s complaint alleged, in substance, that certain bonds belonging to the estate of S., of whose will he was surviving executor, came into defendant’s hands as the personal representative of M., a deceased executor, which they refused to deliver up unless plaintiff would pay an unjust claim for commissions, which was disputed by plaintiff, but which he paid in order to obtain the bonds. Defendant’s answer alleged, among other things, that an account containing charges for the commissions claimed was delivered to plaintiff at his request, examined by him and admitted to be correct. This allegation, after plaintiff had given evidence that he had always disputed the claim, defendants offered to prove on trial. The offer was rejected. Held, error; that the averment in the complaint that the claim was unjust and was disputed was necessary in order to show that the payment was involuntary; and it being put in issue, defendant was entitled to the evidence offered as relevant to that issue.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported on a former appeal, 60 U. Y., 498.)
    The complaint in this action alleged, in substance, that plaintiff and George H. Mumford were the executors of the will of Elizabeth G. Scholey, deceased; that said Mumford-died, having in his possession a large amount of United States bonds belonging to the estate, which came into the hands of defendants as his personal representatives; that plaintiff demanded the same, but they refused to deliver them up until certain commissions alleged to be due and owing to the estate of said Mumford, to wit, one-half per cent on the value of the bonds, were paid, which claim was unjust and was disputed by plaintiff, and that plaintiff paid the same in order to obtain possession of the bonds; that he subsequently demanded a return of the money so paid, which was refused. Defendant’s answer denied that they refused to deliver up the bonds, and alleged in substance that they offered to deliver up the. bonds upon being paid their claim for commissions and advances; that plaintiff requested them to make out their account therefor, which they did, and it was delivered to and examined by plaintiff, and admitted to be correct, and plaintiff paid the same, and defendants delivered up the bonds; that if the matter had not been thus settled and arranged with plaintiff’s free and voluntary consent they would not have delivered up the bonds until the final settlement of the accounts of said Mumford as executor.
    Upon the trial evidence was given by plaintiff, among other things, that lie had always disputed the claim for commissions. Defendants offered to prove that they never imposed as a condition for the surrender of the bonds the payment of the money by plaintiff. This was objected to by plaintiff’s counsel as inconsistent with the answer, and the offer was excluded, to which defendants’ counsel duly excepted. Defendants’ counsel also offered to prove the allegations of the answer as to the presentation of the account and the admissions as to its correctness by plaintiff. The court excluded the offer, and defendants’ counsel duly excepted. The court, directed a verdict for plaintiff, to which said counsel also duly excepted. A verdict was rendered accordingly.
    
      Geo. F. Danforth for the appellant.
    It was error to reject defendants’ offer to prove that an account containing charges for the commissions had been delivered to plaintiff at his request, and that he had examined it and admitted it to be correct. (Wyman v. Farnsworth, 3 Barb., 369 ; Suprs. Onondaga v. Briggs, 2 Den., 39; Mowatt v. Wright, 1 Wend., 355; Knibbs v. Hall, 1 Esp., 84; Hall v. Shultz, 4 J. R., 245; Harmony v. Bingham, 12 N. Y., 111.)
    
      F. A. Macomber for the respondent.
   Rapallo, J.

After having given due consideration to the argument of the learned counsel for the appellant as to the construction of the answer, we remain of the opinion that it admits that the payment of the amount stated in the account rendered for commissions and advances, was required as a condition for the delivery of the bonds to the plaintiff. The offer to prove that the defendants never imposed as a condition for the surrender of the bonds the payment of any money by the plaintiff, was therefore properly rejected.

But the answer contains the further allegation that the account of the commissions and advances claimed by the defendants, was delivered to and examined by the plaintiff and admitted to be correct. This allegation the defendants offered to prove, and the offer was rejected. The complaint averred that among the commissions claimed was the sum of $474.77, being one-half per cent on the value of the bonds; that the claim was unjust and was disputed by the plaintiff. This was a necessary averment to show that the payment was involuntary, and it was expressly denied by the answer. On the first trial as well as upon the last, evidence was adduced by the plaintiff in support of the allegation that he always disputed the claim for these commissions. This was one of the issues in the ease, and we think the court erred in refusing’ to permit the defendants to introduce evidence bearing upon it.

We have examined the other exceptions taken and find no error in the rulings of the court, save in the respect before mentioned. But if the appellant desires a new trial upon the issue whether the claim for these commissions was disputed or admitted by the plaintiff, she is entitled to it.

The judgment should be reversed and new a trial ordered, costs to abide the event.

All concur.

Judgment reversed.  