
    James B. Blossom, Appellant, v. Mary R. Chisholm et al., Individually and as Executors of Ellen M. Chisholm, Deceased, Respondents.
    
      Blossom v. Chisholm, 163 App. Div. 948, affirmed.
    (Argued May 3, 1916;
    decided May 23, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 17, 1914, affirming a judgment in favor of defendants entered upon the report of a referee in an action to recover upon a written instrument by the terms of which defendants’ testatrix acknowledged her indebtedness to plaintiff in a large sum, appointed him her agent to sell her real estate, “and out of any proceeds of sale after the use of so much thereof as may he necessary for satisfying actual legal liens on the property sold, he shall retain in repayment to himself of such my indebtedness to him the whole or such part thereof as to him seems proper, and upon realization of any net proceeds of sale, after satisfaction of all hens and claims, -including my said indebtedness to him, such net proceeds shall - be disposed one-half thereof to him and the remaining one-half thereof to myself.” The referee held that: First. The relations between plaintiff and decedent were such as to cast upon plaintiff the burden of proving that the agreement was faff and just and that decedent fully understood its purport and effect. Second. The plaintiff had failed to sustain this burden of proof.
    
      Gustav Lange, Jr., for appellant.
    
      Joseph H. Choate, Jr., and Herbert B. Smith for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Chase, Collin, Ouddeback, Cardozo, Seabury and Pound, JJ.  