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Matter of Grossman

Appellate Division of the Supreme Court of New York, Third Department
Mar 1, 1930
228 App. Div. 860 (N.Y. App. Div. 1930)

Opinion

March, 1930.

Motion to amend decision made June 21, 1929, and order entered on January 3, 1930, (See 227 App. Div. 637.)


No formal findings were made by the surrogate, nor were any contained in any decision or decree, which merely dismissed the claim. The claim was on an alleged contract between the decedent and the claimant whereby the former agreed to leave all of his property to the latter in consideration of board, lodging and care. The evidence would have justified a determination by the surrogate that no such express contract was made. However, it appeared that the claimant did furnish board, lodging and care for the decedent; and failing to establish an express contract she would be entitled to recover the value of such services if she is able to produce sufficient proof on the subject. That question was not passed upon, and the record discloses no sufficient reason why that issue was not tried. Had there been a separate decision that no express contract existed, we would have affirmed that determination; but it was error to dismiss the entire claim. For greater clarity the decision and order should read, "Decree reversed on the law with costs to claimant to abide the event payable out of the estate; and claim remitted to the Surrogate's Court, where the parties may take such further proceedings as they are advised." Hinman, Acting P.J., Davis, Whitmyer, Hill and Hasbrouck, JJ., concur. Decision, and order dated January 3, 1930, amended to read as follows: Decree reversed on the law, with costs to claimant to abide the event, payable out of the estate; and claim remitted to the Surrogate's Court where the parties may take such further proceedings as they are advised.


Summaries of

Matter of Grossman

Appellate Division of the Supreme Court of New York, Third Department
Mar 1, 1930
228 App. Div. 860 (N.Y. App. Div. 1930)
Case details for

Matter of Grossman

Case Details

Full title:In the Matter of the Judicial Settlement of the Accounts of SAMUEL…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 1, 1930

Citations

228 App. Div. 860 (N.Y. App. Div. 1930)