
    James R. Foland, respondent, v. Morgan A. Dayton, appellant.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 1, 1886.)
    
    1. Executors and administrators—When personally liable for services RENDERED FOR THE BENEFIT OF THE ESTATE.
    _ The administrator himself will be personalty liable for the value of services rendered, at his instance, for the benefit of the estate, where there is; no agreement on the part of the creditor to look to or confine his claim for compensation to the estate itself or the defendant in his official capacity.
    
      3. Same.
    Where services are rendered under such an agreement, the party, rendering them will not be at liberty afterwards to resort to the personal representative individually, but he will be confined to the enforcement of the agreement as made by him.
    8. Same.
    A mere intention to look to one as administrator is not suflicient'to exclude his individual liability.
    . Appeal from an order setting aside a verdict and directing a new trial.
    
      Ira Shafer, for appellant, Morgan A. Dayton.
    
      Henry G. Andrews, for respondent, James R. Foland.
   Daniels, J.

The action was brought to recover the

value of services stated to have been rendered by the plaintiff for the defendant, who was the administrator of the estate of his deceased son. The right of the plaintiff to recover was in part resisted upon the ground taken in favor ■of the defendant, that if he had become liable at all it was .as administrator of his estate, and the court directed the jury that if it was the intention of the plaintiff to look to Mr. Dayton as the administrator for his compensation, then he could not recover against him individually. This was considered by the court, when the motion for a new trial was finally heard, and decided to have been a misdirection as to the law,- and for that the verdict in favor of the defendant .was set aside. In this view of the law the court was quite clearly correct, for a mere intention on the part of the plaintiff to look to the administrator for his - compensation would not. prevent him from recovering a verdict against the defendant personally,' if the services were rendered, for him without an agreement that they should be paid for' out of the estate. A point similar to this was considered, and .as much as that held,, in Austin v. Munro (47 N. Y., 360), but it probably was not intended to overrule the preceding case of Chouteau v. Suydam (21 N. Y., 179). It was practically also followed in New v. Nicholl (73 N.Y., 127). What these cases considered together require that the law shall be held to . be, is that the administrator himself will be personally liable for the value of services rendered at his instance for the benefit of the estate, where there is no agreement on the part of the creditor to look to or confine his claim for compensation to the estate - itself, or the defendant in his official capacity.

; Where services are rendered under such an employment ■or agreement, then the party rendering them will not be at liberty afterwards to resort to the personal representative individually, but he will be confined to the rights or remedies existing for the enforcement of the agreement as. it has been made by him; and if, by the agreement, he has confined himself" to the estate as his debtor or the personal representative administering it, he will not be permitted to maintain an action for the recovery of his demand against the personal representative himself individually. To produce this result, the agreement of the plaintiff may be established as other agreements are allowed to be proved in courts of justice. That may be done by the language used on the occasion when the agreement is alleged to have been made, or by circumstances disclosing its nature and effect. Whether the plaintiff can maintain the action, must, therefore, depend upon what the contract shall appear to have been under which the services were rendered. A mere intention to look to the estate or the defendant as administrator, is not sufficient to exclude his individual liability, but an agreement on the part of the plaintiff, either expressed or to be inferred from the'circumstances, to look to the estate or the administrator as such for his compensation, will prevent him from maintaining his action to recover against him mdividually. As the case was submitted to the jury, the charge was too favorable to the defendant, and the order was right setting aside, the verdict and directing another trial of the action. It should be affirmed, as the facts have been made to appear, with costs to abide the event.

Brady, J:, concurs.  