Opinion
May, 1925.
Appeal from Surrogate's Court of Monroe County.
Present — Hubbs, P.J., Davis, Sears, Crouch and Taylor, JJ.
Decree affirmed, with costs. All concur, except Sears, J., who dissents in a memorandum.
The plaintiff's case rests wholly upon admissions of the testator to the effect that he was paying the claimant $10,000 a year for his services. The finding of a contract to that effect from such admissions is, I believe, contrary to the weight of the evidence in view of the following circumstances: 1. There was an absence of written proof. ( Rosseau v. Rouss, 180 N.Y. 116.) 2. The services continued for upwards of six years without commensurate payments. ( Sheldon v. Sheldon, 133 N.Y. 1.) 3. When claimant asked testator for a substantial payment testator refused it, became angry, and finally paid claimant much less than he had asked. 4. When, according to Miss O'Connell, testator said that he had provided for claimant in his will, testator had already made a will containing no such provision and afterwards actually made a codicil containing no such provision. 5. A contract such as has been found in this case is unusual. I, therefore, am of opinion that the decree should be reversed upon the facts.