
    Frank H. Kittle, Resp’t., v. Israel Huntley, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Executors and administrators — Liability for funeral expenses.
    An executor or administrator is liable for the suitable and reasonable burial expenses of his testator or intestate if he have assets enough for that purpose, even if by reason of his absence or neglect the funeral was ordered by another.
    2. Same — Evidence—Value of casket.
    In an action to recover for burial expenses evidence as to the price of the casket as between the manufacturer or wholesale dealer and the undertaker is immaterial, as such articles have a market value, as fixed by the-trade, as between the undertaker and his customers, and the value must be measured by such market price.
    This is an appeal from a judgment entered upon the report of a referee.
    
      McClellan & McClellan (Robert H. McClellan, of counsel), for app’lt; Davenport and Hollister (William H. Hollister, of counsel), for resp’t.
   Mayham, P. J.

The complaint in this action alleges in substance that the plaintiff is an undertaker, and as such took charge of and superintended the burial of Roxanna Dual, deceased, and performed the work and furnished necessary materials, and paid, laid out, and expended moneys necessary for and connected with such burial services, all of which were worth the sum of $127.

The complaint alleges also that the deceased left a last will and testament, wherein she named the defendant as sole executor, and that such will was duly proved and the defendant was duly appointed as executor thereof, and duly-qualified as such, and entered upon the discharge of his duties as executor, and that as such he received personal assets belonging to the estate of the deceased of the value of $700, and that the plaintiff before the commencement of this action demanded of the defendant, as executor, the payment of his claim for such burial services, while the defendant held such funds as executor, and payment was refused, or neglected.

The answer admits the allegations of the complaint, as above in substance set forth, but alleges that the plaintiff acted at the instance and by the employment pi one Sarah Yallee, and alleges that the burial expenses were extravagant and too expensive, considering the circumstances of the deceased.

The only real questions presented by this appeal are:

First. Whether the defendant is liable under the circumstances of this case for the funeral expenses of the testator.

Second. Whether the amount allowed by the referee was sustained by legal evidence.

Third. Whether on the trial the referee committed errors which prejudiced the legal rights of the defendant.

The law seems well settled that an executor or administrator of a deceased person is liable for the suitable and reasonable burial expenses of the testator, or intestate, if he have assets sufficient for that purpose, and if such personal representative, by reason of absence or neglect, fail to furnish such burial in the first instance, he is liable to the one who incurs such expenses, so far as he has assets of the deceased in his hands. Patterson v. Patterson, 59 N. Y., 583, 584, and cases there cited.

We think all the essential facts to fix the liability upon the defendant for the payment of reasonable and suitable burial expenses in this case are conceded and admitted by the pleadings, unless it can be claimed that Mrs. Yallee incurred the expense and was charged by the plaintiff with it.

This the referee refused to find, and we think his determination upon that point fully sustained by the evidence, and correct. We are also of the opinion that the finding of the referee as to the amount which the plaintiff should be allowed is fully sustained by the evidence in this case, and the burial expenses were not unreasonable in amount, in view of the estate left by the deceased, and her station in life, as appears by the evidence.

The remaining question is, whether the referee committed any error in receiving, retaining or rejecting evidence under the objection, motion or offer of the defendant, for which this judgment should be reversed.

It is insisted, by the learned counsel for the appellant, that it was competent for him to inquire into the price of the casket as between the manufacturer or wholesale dealer and the undertaker or retail dealer’, and that the witnesses should have been compelled to answer that inquiry, or their testimony given on the part of the plaintiff stricken out.

' We are not prepared to subscribe to that doctrine, as applied to this case, where the article of merchandise, as in this case, has a market value, as fixed by the trade, as between the undertaker and his customers. The cost price between the manufacturer and the undertaker would not, in such a case, furnish a correct criterion as to the price between the undertaker and his customers, and an inquiry into it would lead to unsafe and unprofitable speculation on the part of the court or jury .as to the rate of profit which should be charged by the undertaker, and would not be evidence of the market value between the last named parties ; that value must be measured by the market price between the undertaker and his customers, as regulated by competition and the law of demand and supply.

While a wide range of inquiry should be allowed on the cross-examination of a witness as to the value of property, when its value is in dispute, we think it should be confined to the market value, which is actually the subject of inquiry between the parties, when sold at retail, and not the price as between the wholesale dealer and the retail dealer, as was sought to be proved in this case.

But if there be doubt as to the correctness of this'rule, we think that there was sufficient evidence of an unobjectionable character to sustain the finding of the referee as to the value of the materials and services furnished and rendered to uphold the report and judgment, and that no error was committed by the referee for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.  