Warren v. Albro — 148 N.Y.S. 1149

Majority

p. 1149

WARREN v. ALBRO et al.

(Supreme Court, Appellate Division, Second Department.

July 31, 1914.)

Headnote

Appeal from Trial Term, Dutchess County. Action by Augusta M. Warren against William C. Albro and another, as administrators of George Brown, deceased. From a judgment in favor of p1aintil~, and from an order denying defendants' motion for a new trial, they appeal. Reversed, and new trial granted.

Sydney A. Syme, of Mt. Vernon, for appellants.

Morschauser, Mack & Mulvey, of Poughkeepsie, for respondent.

The jury must have found that the decedent agreed to leave th~e plaintiff $25,000 in money or in land. The evidence does not with sufficient clearness show that such agreement was made. Whether the evidence sufficiently shows an agreement to leave her the farm is not decided, as a new trial is required, and the complaint does not specificaliy allege such an agreement. 3udgment and order reversed, and new trial granted; costs to abide the event.

I think that the evidence fails to establish any contractual relation between plaintiff and decedent with that degree of clearness and cogency which is required in actions of this character. Construing the evidence of most of the witnesses called by plaintiff most favorably for her, it indicates nothing but an unexecuted testamentary intention upon the part of defendants' intestate. As to the testimony of the three or possibly four witnesses who did testify to facts which, if accepted, might establish a consideration for his promise, it is sufficient to say that either they were interested witnesses testifying to alleged admissions of decedent, or their testimony was so discredited upon cross-examination that it afforded no basis for any verdict against defen~ants. I concur in the reversal of the judgment and order, but I go further, and think that the motion made at the close of the entire case to dismiss plaintiff's complaint should have been granted.