
    In the Matter of the Claim of William Lang, Ex’r, App’lt, v. The Estate of Eliza Stringer, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Decedent’s estates—Claims against.
    Four years before her death decedent sent for claimant and asked him to move into her house, saying she could not afford to run it or to board out. He did so and took the place and boarded her and paid the taxes at her request. Held, that he was entitled to be repaid for the taxes and board, less a fair rent for the premises or such part thereof as he occupied.
    Appeal from decree of the surrogate of Westchester county, dismissing the claim of William Lang, an executor.
    
      Arthur T. Hoffman, for app’lt; H. T. Dykman, for ex’rx, resp't.
   Barnard, P. J.

—William Lang is an executor of the will of Eliza Stringer, deceased. The claim is made up of taxes paid and for board of testatrix in the last year of her life.

The claim was rejected by the surrogate. The claim was proven so far as to call for a judgment for the claimant for some amount. He paid the taxes and gave the receipts to deceased. She asked him to pay the taxes, and they were taxes upon her land. The claim for board and services was proven also for an amount equal to their value.

The testatrix owned a house and two or three acres of land. She occupied it herself, with a servant girl and a young man. The young man was about to. leave, and the testatrix sent for Lang and asked him to move there. She said to him that she could not afford to run the place, and if he came there she would have a home for a lifetime, and that she could not afford to board out. After some hesitation, Lang consented to move on the place, and after that, for some four years, he kept up the place and boarded the deceased until two or three months before her death.

The claim, which shall be found to be the difference between the fair rent of the premises or of that part of the same which Lang occupied and the value of the boards should be allowed.

There is no proof that there was any special contract between the parties. There is a great conflict as to the facts which would go to the amount of the claim.

Ko finding is made as to the claim itself. It is simply found that there was a special contract between the parties. That it is not proven what it was, and that, therefore, the claim be rejected. An executed special contract may be sued upon generally, and the contract price will control the amount of the recovery. Higgins v. Newton, etc., R. R. Co., 66 N. Y., 604.

The proof shows a cause of action and a legal implication arises that the deceased promised to pay for what was furnished. There is express proof of a promise. The deceased accompanied the request by the statement that the claimant would lose nothing by coming.

The decree should be reversed and the proceedings remitted to the surrogate for a rehearing, with costs to abide the event.

Pratt, J., concurs; Dykman, J., not sitting.  