Opinion · Nylaw New York

MATTER OF STEIN, 214 App. Div. 752 (1925)

In the Matter of Judicial Settlement of the Accounts of SIMON N. STEIN,as Ex’[r, x], etc., of LOUIS N. STEIN, Deceased, Appellant.JULIUS S. BERKMAN, Respondent., 214 A.D. 752 (Appellate Division of the Supreme Court of New York, Fourth Department. 1925)

Type
Opinion
Court
Nylaw New York
Jurisdiction
Nylaw
Date
1925-01-01
Topic
general

MATTER OF STEIN, 214 App. Div. 752 (1925) In the Matter of the Judicial Settlement of the Accounts of SIMON N. STEIN,as Executor, etc., of LOUIS N. STEIN, Deceased, Appellant.JULIUS S. BERKMAN, Respondent.Appellate Division of the Supreme Court of New York, Fourth Department.

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MATTER OF STEIN,214 App. Div. 752(1925)
In the Matter of the Judicial Settlement of the Accounts of SIMON N. STEIN,
as Executor, etc., of LOUIS N. STEIN, Deceased, Appellant.
JULIUS S. BERKMAN, Respondent.
Appellate Division of the Supreme Court of New York, Fourth Department.
May, 1925.
Appeal from Surrogate's Court of Monroe County.
Decree affirmed, with costs. All concur, except Sears, J., who dissents in a memorandum.
Present — Hubbs, P.J., Davis, Sears, Crouch and Taylor, JJ.
SEARS, J. (dissenting):
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 hisPage 753services. 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. (Rosseauv.Rouss,180 N.Y. 116.) 2. The services continued for upwards of six years without commensurate payments. (Sheldonv.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.