
    James Arthur, Respondent, v. Sarah Dalton, Appellant, Impleaded with Others.
    No. 2.
    
      Extra allowance based upon an annuity — its basis must be clearly established.
    
    Where an annuitant is in doubt as to his own age, and produces no satisfactory ■evidence of his final statement in regard to it, which makes him younger than at appears by the affidavits of three people that he previously stated that he was, this increased expectation of life, as hearing upon the value of his annuity, .should not he made the basis of an increased extra allowance in an action Frought by him to establish the fact that his annuity is charged upon certain lands.
    Appeal by the defendant, Sarah Dalton, from an order of the Supreme Court, made at the' Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 22d day ■of May, 1896, increasing the extra allowance- originally granted to the plaintiff from the sum of $120 to $325.
    
      Edward W. & Johnston, for the appellant:
    
      Alfred D. Lind and Maurice B. Blumenthal, for the respondent.
   Barrett, J.:

The judgment recovered by the plaintiff declares an annuity of $600 a year, bequeathed him by the will of his wife, Rose Arthur, to be a charge on real property left by the testatrix, and awards-him qDayment of past-due and future installments thereof. The extra allowance granted below is based upon the total of the sums due and to become due, the latter being computed according to the-Northampton tables. We are dissatisfied with the proof on the latter head. It is based upon the assumption that the plaintiff was fifty-five’years of age at the time of the making of the application. He made affidavit to that effect. But it -appeared by the affidavits-of three people that, at the trial of another action between the same parties, in June, 1894, the plaintiff stated in open court, in response to ¡a question of his counsel, that his. age was sixty-four. In reply, the plaintiff merely denies having “ testified ” in that manner, and alleges that he was not a witness upon that trial. The opposing affiants did not so state. He might well have made the statement in open court without being upon the witness stand. -

Nor do his further allegations inspire confidence. He states that, during the pendency of this former suit, he ivas asked his age, and did not know exactly how old he was; that he thereupon telegraphed, to his younger sister in California, who was familiar with the ages-of all .our family,” and that she telegraphed back to him that he was born January 4, 1841. The plaintiff thus has recourse, in a matter which ought to be' peculiarly within his own cognizance, not to a-written record, but to the mere memory of a sister, who was not equally interested with himself in the fact. . The affidavit of this-sister was not procured-; she is far without the jurisdiction, and pains is taken to state that she has since died. This unsubstantial authority is the main support of the plaintiff’s affidavit upon this-motion. If his present statement of his age is correct, he must-have been over eighteen years older than his wife at the time of' her death. Both the appellant.and her husband depose that there-was no such disparity between their ages, and the plaintiff merely ' says: My wife, Rose Arthur, was older than I, and often admitted such to be the case. 1 do not, however, know what her exact age was, and, therefore, cannot swear to the difference between her age- and miñe.” Other facts are told in the affidavits which tend to-weaken the plaintiff’s assertion as to his age, but we need not go-' over them in detail.

The proof in- matters of this sort, where the value of the subject-matter of the action is uncertain at the best, ought to be reasonably clear and satisfactory. Here the proof is quite the reverse. It is altogether too slight and uncertain to permit an allowance to be based upon it. The court' below properly allowed the plaintiff $120, that being about five per cent upon the amount due him for past installments of the annuity." Subsequently the court upon special motion increased this allowance to $325, the increase being based solely upon the value of future installments according to the Northampton tables. This increase was erroneously allowed, and it is from the order allowing it that the plaintiff appeals. The reversal of that order will leave the original allowance of $120 undisturbed.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to increase the allowance beyond that originally granted denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  