
    WARREN, Respondent, v. PURDY, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    May 26, 1910.)
    Action by Gordon O. Warren against Charles I. Purdy, as executor, etc., of Henry Terry, deceased.
   PER CURIAM.

We think that this judgment cannot stand. Conceding that the evidence could justify the conclusion that the claim was based upon certain charges which were discharged by the claimant, yet the evidence does not establish that the payments were made from the money-of the claimant, and not from moneys that belonged to the estates of his dead uncles. The claimant for years was maintained and supported by them in the premises, managed the hotel therein, and finally took over the entire receipts therefrom absolutely. It seems strange that some of the bills, which are stale, were not presented to his uncles before death, when they could have been readily paid. Many of the items now sought to be recovered represent such outlay as a tenant at will, who had also taken over the business, would naturally make as incident to the care of the premises or the conduct of the business. The proof is not of that very satisfactory character which is required against estates of the dead, and for this reason the judgment is reversed, with costs to appellant, the order of reference vacated, with leave to proceed before a new referee if they so elect; or to have the validity of the claim determined on the final accounting herein in the Surrogate’s Court.

HIRSCHBERG, P. J., dissents.  