McEwen v. Brewster , 26 N.Y. Sup. Ct. 337 ( 1879 )

Pratt, J.:

The claim made by the defefendant, Pannenter, “that the plain-having agreed with Millspaugh that if he would furnish the board, clothing and all other necessary things, he should receive income for his pay ; such income being, in fact, no more than just equivalent; and that arrangement having been communicated to the trustee, and accepted by him, and acted upon for at least eighteen years, and Millspaugh having executed his part of the agreement, the income in question, all of which accrued during period that Millspaugh supported the plaintiff, must be regarded as having been actually applied to the support of the plaintiff, and as having been transferred to Millspaugh, in payment for such support,” seems to be well founded and decisive of this case. Millspaugh was not a party to the suit of Mrs. Millspaugh against the plaintiff, and it is no way affected by the judgment. It was the plain intent of the parties that Millspaugh should have the income as fast as it accrued. The plaintiff states: I have lived with Mr. Millspaugh, from the first till now, under the same agreement; he was to give me a home, furnish me with clothes, and what I should need, and he was to take the income under the will for his pay. In pursuance of this arrangement, the plaintiff executed a power of attorney to Millspaugh, authorizing him to receive the income from the executor as fast as it became due. This power of attorney has never been revoked, but has been acted upon until the commencement of this suit. There was no other means by which Millspaugh could be compensated for the support of the plaintiff, and upon it he relied while carrying out his part of the agreement. It was the province of the court to •effectuate the intention of the parties by holding that the accrued income was the property of Millspaugh, by virtue of an equitable assignment. It was not necessary there should be an assignment in writing. If it was the intent of the plaintiff that Millspaugh should have the income, and he had fairly earned it under the agreement, it was the duty of the court to give effect to such intention and enforce Millspaugh’s right. (Thurber v. Chambers, 66 N. Y., 42.) It was not an agreement to apply a particular fund to the payment of a particular debt; but the application was made as fast as anything became due to Millspaugh under the agreement. That the money was paid over to Millspaugh only at stated periods is not material. The money being the property of Millspaugh, it passed to his receiver.

Judgment affirmed with costs.

Present — Barnard, P. J., and Pratt, J., Dykman, J., not sitting.

Judgment affirmed, with costs.