#### BRIGDEN v. OSMAN.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

"New Trial—Inadvertence op Counsel.

A new trial was properly granted where it was undisputed that a defense on which a general verdict for defendant was rendered applied to only one of the two causes of action sued on, but, through inadvertence of counsel, attention was not called to the fact. 32 N. Y. Supp. 782, affirmed.

Appeal from circuit court, Cayuga county.

Action by William Brigden, as executor of Marania A. P. Brigden, against Charles H. Osman. On a trial a verdict was rendered for defendant, which was set aside, and a new trial ordered. 32 N. Y. Supp. 782. Defendant appeals.

Affirmed on condition.

Argued before LEWIS, BRADLEY, and WARD, JJ.

David M. Dean, for appellant.

S. Edwin Day, for respondent.

LEWIS, J.

The conclusion we have reached as to the proper dis-.position to be made of this appeal makes it necessary to state but a *1026very few of the many facts which were fairly established by the evidence. The plaintiff’s testatrix, during her lifetime, advanced and paid out the sum of $1,800, under circumstances which made the defendant liable to refund and pay to her one-half of said amount. By an arrangement made between the widow and heirs at law of Milo Pierce, deceased, the principal part of his estate was divided between them. This division occurred before any judicial settlement of the estate had taken place. The testatrix was a daughter of the deceased, and, as such, received her proportion of the property so divided. The amount she received was several thousand dollars. When the final settlement of the estate was had, the assets remaining were not sufficient to pay the debts. The testatrix died after receiving the money, and before the final settlement of the estate was had. The amount which the estate of the testatrix was liable to pay to make up its proportion of such deficiency was $643.23, which sum the plaintiff, as executor, paid on the 25th day of November, 1892. It was established upon the trial that the defendant was legally liable to the plaintiff for one-half of the sums so paid. Two causes of action were stated in the complaint. The first was for the $900 paid by the testatrix for the defendant. The second cause of action was for the one-half of the $643.23 paid by the plaintiff, as stated. The testatrix died in the month of April, 1892.

The question, and the only question, about which there was any controversy upon the trial, was as to whether the deceased had, during her lifetime, released and discharged the defendant from any and all claims on account of the payment of said sums of money. Such a defense was not pleaded by the defendant, but, notwithstanding his omission to interpose such a defense, the question was litigated, and the jury rendered a general verdict for the defendant. By the inadvertence and oversight of the plaintiff’s counsel, the court’s attention was not called to the fact, which had been assumed upon the trial, that the $643.23 was in fact paid by the executor after the death of the testatrix; that she was not aware of the existence of such a claim, and hence could not have released and discharged the defendant therefrom. The case, as settled, states that “payment of the sum of $643.23 by plaintiff to William Pierce, administrator, etc., of the estate of Milo Pierce, deceased, and that the same was paid on November 25th, 1892, were facts assumed on the trial.” It is the contention of the appellant’s counsel that this statement was not sustained by the evidence. It was inserted in the case by direction of the justice before whom the trial was held. It was not claimed in the complaint that the $643.23 was paid by the testatrix, but, on the contrary, it was claimed to have been paid after her death. We assume, in deciding the appeal, ¡lint the fact was as stated in the case. Upon the attention of i he trial court being called to this error, an order was granted setting aside the verdict and granting a new trial, upon the payment by the plaintiff of the costs of the former trial and $10 costs of the motion. As to the claim of $900 paid by the testatrix during her lifetime, there would seem to be no good reason why the plaintiff should have a new trial. The jury found that the defendant had been released from any lia*1027bility to pay that claim. As to the other claim, by the oversight and error of his counsel the plaintiff was unjustly defeated, and is entitled to relief.

The order should be affirmed, with $10 costs and disbursements, unless the defendant, within 20 days, gives to the plaintiff a stipulation consenting to allow judgment to be entered against him in said action for the sum of $321.61, with interest thereon from the 25th day of November, 1892, with costs of the action. If such stipulation be given, then the order appealed from should be modified accordingly, without costs of this appeal to either party. All concur.