Marggraf v. McLean — 64 N.Y.S. 1112

Majority

p. 1112

MARGGRAF v. McLEAN.

(City Court of New York,

General Term.

May 28, 1900.)

Headnote

Executors and Administrators—Disputed Claim—Evidence.

There can be no recovery for work performed for a decedent during his lifetime unless it is shown that he consented to or contracted for the performance thereof."

Appeal from trial term.

Action by Charles Marggraf against one McLean, as executor of William Snell, deceased. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before FITZSIMONS, O. J., and SCHUCHMAN, J.

Andrew F. Murray, for appellant.

(Ashley, Emley & Rubino, for respondent.

The plaintiff was bound to prove that the testator engaged him to perform the services sued for, or that they were performed with his knowledge or consent. In re Humfreville, 6 App. Div. 535 , 39 N. Y. Supp. 550 . No attempt was made to offer such testimony. The defendant’s testator was, so far as the evidence in this case shows, apparently entirely ignorant of the fact that the said services were rendered, or material furnished. Therefore plaintiff has no legal right to ask compensation therefor. The verdict is therefore against the law and the evidence, and must be reversed. It is so directed, and a new trial is ordered, with costs to appellant.

SCHUCHMAN, J., concurs.