In re the Judicial Settlement of the Accounts of Cohen , 91 N.Y. Sup. Ct. 586 ( 1895 )

Follett, J.:

The order denying the motion for a rehearing is sustainable on four grounds: (1) It has long been the rule in this State that a motion for a new trial, because of newly-discovered evidence, must be founded on the affidavits of the newly-discovered witnesses, unless it is shown that they cannot be obtained. (Adams v. Bush, 1 Abb. Ct. App. Dec. 7; S. C., 2 Abb. Pr. [N. S.] 104; Denn v. Morrell, 1 Hall, 382; Roberts v. The Johnstown Bank, 38 N. Y. St. Repr. 563; S. C., 14 N. Y. Supp. 432; Matter of Collins, 6 Dem. 286 ; Gould v. Moore, 8 J. & S. 387; Garvey v. U. S. Horse & Cattle Show, 3 Misc. Rep. 352 ; Denny v. Blumenthal, 8 id. 544; Baylies’ N. T. & App. 528 ; 2 Rumsey’s Pr. 414.) The affidavit of Mr. Feuchtwanger was not produced, nor -was its absence explained. (2) Apart from this, had Feuchtwanger’s affidavit been presented stating that he would “corroborate and substantiate the testimony” given by Charles Mayer, it would have been insufficient. Such an affidavit must disclose the facts the witness will testify to. (3) A contract made by an attorney with an heir or next of kin, by which he is to receive for his services a large share of his client’s interest in an estate, is always regarded with suspicion, and, if the attorney seeks to enforce it, the burden is on him to show that the contract was fair and just, and that his client acted understandingly and with full knowledge of all the facts connected with the transaction. (Ford v. Harrington, 16 N. Y. 285; Evans v. Ellis, 5 Den. 640 ; Haight v. Moore, 5 J. & S. 161; Mason v. Ring, 3 Abb. Ct. App. Dec. 210.) It appears from the record that the share of Mrs. Mayer in the estate of Miss Neary exceeded but by a few dollars the amount which the claimant alleges she contracted to pay for his services in securing that interest. The claimant presented no evidence before the surrogate that his services in the settlement in the Neary estate were worth the sum of $1,200, or any sum beyond the allowance made to him by the surrogate on the settlement of that estate. (1) The evidence of Charles Mayer is insufficient to create a personal liability against Mrs. Mayer. Her agreement was that Mr. Cohen was to receive $1,200 out of the estate of Bridget Neary for the services he was to render for that estate.

The order should be affirmed, with costs against the appellants personally.

Yan Brunt, P. J., and Parker, J., concurred.

Order affirmed, with costs against the appellants personally.