Vogel v. Goldsmith

243 A.D. 581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1934
• Status: Published

Opinion

Judgment in favor of the plaintiffs on an oral contract made by the decedent with them for services rendered and to be rendered unanimously affirmed, with costs.' The claimed issue of fact founded on the second defense had no support in the evidence. Its submission in the manner desired by the defendant was, therefore, properly refused, assuming that the question is sufficiently saved in this record. In effect the issue of fact desired to be sumitted to the jury was submitted in the main charge of the court which required before the plaintiffs could prevail that the jury find that the agreement asserted by these plaintiff^ had been made and that that agreement was to furnish a home free and clear “ in addition to the provisions which he did make in his will for them.” The only evidence in support of the claimed issue of fact in this case which the defendant could invoke was that contained in the two bequests. The presumptions of law attaching to these two bequests precluded the arising of any issue of fact favorable to the defendant’s contention. The bequests followed a direction of the decedent that his debts should be paid and the bequests were free from any language that justified an inference that they were made in lieu of any obligations of the decedent under his contract with the plaintiffs or that they were made in payment, whole or part, of any such obligations. The bequests were couched in language that resulted in the presumption that they were not in payment of debts but were acts of bounty of the decedent intended as such, apart and distinct from any obligations owing by the decedent to the plaintiffs pursuant to a contract between them. Especially is this so in view of the dissimilarity in the amounts of the bequests and the obligations of the decedent under the contract found to have been made and in view of the obligations of the decedent under that contract not being of an unliquidated character. Present — Lazansky, P. J., Young, Carswell, Seudder and Davis, JJ.