Barone v. Cox

51 A.D.2d 115, 379 N.Y.S.2d 881 (1976)

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Barone v. Cox

New York Supreme Court, Appellate Division
51 A.D.2d 115, 379 N.Y.S.2d 881 (1976)

Facts

In June 1965, Edna McCurdy provided Michael Barone (plaintiff) with a $10,000 note in the aftermath of Barone’s unsuccessful investment in a business that had been run by McCurdy’s husband. Per McCurdy, at Barone’s insistence, McCurdy forged the name of Lillian Pierce (defendant), McCurdy’s mother, on the note as a cosigner. Moreover, McCurdy averred that Pierce did not know about the note and that Pierce had nothing to do with the indebtedness that the note represented. Barone denied knowing that Pierce’s signature was forged but did not dispute that Pierce did not sign the note or that the note did not reflect any money that Barone loaned or advanced to Pierce. In April 1970, shortly after learning that Pierce was admitted to a home for the elderly and infirm due to her deteriorating senility and disorientation (and after allegedly expressing concern that the county would take all Pierce’s assets), Barone sued Pierce—but not McCurdy—seeking repayment of the note. Barone obtained a default judgment against Pierce in June. McCurdy saw notice of the default judgment in the newspaper. Pierce died in December 1972, and Kevin Cox (defendant), the county public administrator, was appointed the administrator for Pierce’s estate in early 1975. Cox moved to vacate Barone’s judgment against Pierce. Barone responded that laches barred Cox’s motion, that McCurdy’s claim that Pierce did not really sign the note was inadmissible, and that the facts that Pierce was not committed to a mental institution and that a committee was not appointed for her suggested that Pierce was mentally competent. The trial court denied Cox’s motion. Cox appealed.

Rule of Law

Issue

Holding and Reasoning (Witmer, J.)

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