Opinion
December, 1934.
Decree of Surrogate's Court, Suffolk county, allowing claim of respondent, affirmed, with costs payable out of the estate. If we eliminate the account book as incompetent evidence, we think that there is still sufficient evidence to establish the claim. In accordance with a custom, the testatrix gave an order to claimant to buy dresses and other property in Paris for the former's personal wardrobe. As a question of fact these dresses were purchased at a time when claimant was informed that the testatrix was recovering from an operation performed after claimant had left for Paris. On her return she learned that the testatrix had died. It is admitted in the petition that the dresses and property for which claim is made were delivered at the late residence of the testatrix; and they were produced by the executor on the trial. There is some proof (and further evidence could readily have been furnished) that these dresses were of the type and size that decedent normally wore; and that they were of the value as billed. We think that this comparatively small claim should not be the subject of another trial solely to permit the claimant to amplify her proof. The payment made by the executor in October was obviously to discharge an earlier bill for another transaction of the same general character. Lazansky, P.J., Carswell, Tompkins and Davis, JJ., concur; Hagarty, J., dissents and votes for reversal and a new trial.