In re the Judicial Settlement of the Account of Proceedings of Moodie

Decree of the Surrogate’s Court of Westchester county, in so far as appealed from, modified by disallowing the claim of May Kerslake in the sum of $7,250 and allowing in the place thereof the sum of $100, being her wages for February and March, 1926; and as so modified affirmed, without costs. The evidence does not establish any definite agreement on the part of the deceased to turn over any specific property as part of the consideration for the services of the claimant during the period from May 20, 1921, to March 15, 1926, other than the consideration indisputably given to the claimant by the deceased, to wit, a home for herself and her husband up to January 1, 1926, when the decedent obligated himself, in addition to what he was theretofore giving to the claimant and her husband, to pay fifty dollars a month to the claimant. The right to a quantum meruit recovery may only arise where a contract by a decedent to give property in return for services has been established by clear and convincing evidence, and the further proof that such a contract has been breached by the failure to give the property agreed upon as the consideration for the services. (McKeon v. Van Slyck, 223 N. Y. 392.) That is not this case. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur. [129 Misc. 853.]