Smith v. Baylis , 4 Dem. Sur. 30 ( 1885 )

The Surrogate.

Proof was offered by the administrator, Baylis, tending to show that N. W. Husted, for a valuable consideration, had, in writing, sold said judgment and agreed to execute a satisfaction piece thereof, or to assign the same as he might be requested, and that, after his death, his administrator had been requested to assign it to one Laurie. No such writing was produced, and the petitioner objected to parol evidence of its contents. Of course, the evidence was incompetent, if the writing were in existence, and capable of production. The attorney for the administrator alleged that he had it at his office. Hence the objection was a good one, and there is no competent evidence before me on the subject.

The petitioner produced evidence of the satisfaction of the judgment. This is deemed conclusive here. Even if proper evidence of the agreement to assign it had been produced, this court would have no power to try and determine the question, whether there had been a breach of the contract to assign it. The administrator of N. W. Husted is not a party to this proceeding, and no decision in reference to such contract could be made by this court which would bind him.

It is not apparent that the administrators of the estate of Anne Smith, deceased, have, or that either of them has, any interest in the matter, other than to pay the fund to the person legally entitled to receive it. It is not denied that Mr. Bay lis still holds it. As the evidence stands, which shows that the judgment, which was the only obstacle in the way of directing payment of the share of John B. Smith to him, by the former decree, has been satisfied, that decree must be modified so as to direct the payment to be so made. .