McMahon v. Smith

. The defendant signed a written instrument stating her desire to procure a loan of $75,000 at four per cent interest per annum, “ On mortgage for three years, secured by the Bond of Est. of Josiah T. Smith,” on described property. Following the description the instrument contains the following clause: “ I hereby.authorize Mr. Michael Furst to procure for me the above Loan, on obtaining which I -agree to pay him $1,000.00 to cover all commissions & expenses for Title Insurance lawyers fees, etc. (Signed) Cynthia E. Smith, Exrx.” Furst caused an application for the loan to be made to the Emigrant Industrial Savings Bank of Hew York, which after appraisal approved the loan for the amount of $75,000 in writing, and sent the matter to the Title Guarantee and Trust Company- for Search and .report on title. This acceptance was based, upon a valid title, and legal authority and right in the applicant to execute a valid mortgage securing such loan. The search when made disclosed the fact that the .power of the applicant to mortgage the property of her testator was limited to such sum as represented existing mortgages thereon, viz., $63,000, with a small amount of accumulated interest, and the bank thereupon canceled its approval and declined to make the loan. Plain tiff claims, however, that the application for the loan was subsequently reduced to $65,000 by defendant’s son, and that his assignor procured a corporation already, able and willing to make the loan of this amount, but it is not made to appear that the son had authority to act for his mother in this respect or that she personally authorized a loan of $65,000. Until this is shown by ,satisfacto2-y evidence, the plaintiff is not entitled to a judgment against her personally. He is not' entitled to i’ecovér against her in her repi-esen'tative capacity' because the estate of her testator was not bound by her contract to Furst, and could not be compelled to pay the siun she had undertaken in her contract to’pay to him. (Austin v. Munro, 47 N. Y. 360, 366; Parker v. Day, 155 id. 383, 387, and cited cases.) After the jury rendered a general verdict for the plaintiff, the eco2,d shows the following to have occmTed.: “ Counsel for defendant moves for a new trial on the further .ground that it is not definitely stated by the jury whether the verdict is against the defendant individually or in her. capacity as executrix. Motion *841denied; defendant excepts. The Court: The verdict is received and filed as a verdict in favor of -the plaintiff against the defendant Cynthia E. Smith, as'she is- described individually and as executrix and trustee under the last will and testament of Josiah T. Smith, deceased. Defendant excepts. Mr. Williams': May I ask your Honor to put that in the form of a charge to the jury, that if they find a verdict against the defendant, they must find it against her in that capacity. Mr. Manne: I object to that. The Court: I direct the jury to find a verdict in accordance with the instruction of the Court. The jury thereupon returned a verdict against Cynthia E. Smith, individually and as executrix and trustee under the last will and testament of Josiah T. Smith, deceased, for $1,250. Defendant excejits.”'

These exceptions present reversible error, and the judgment, together with the order denying defendant’s motion for a new trial, must be reversed and a new trial granted, costs to abide the event.

Hirsohberg, P. J., Woodward, Thomas and Carr, JJ., concurred.

Judgment and order reversed arid new trial granted, costs to abide the event.