In re the Judicial Settlement of the Accounts of Durfee

Decree affirmed, with costs to respondents against the appellant. Hill, P. J., Rhodes, Crapser and Bliss, JJ., concur; Heffeman, J., dissents, with a memorandum.

(dissenting). I dissent from the decision in this case and vote to reverse the decree of the surrogate and remit the matter to that court for determination as to the damages sustained by claimant. As I read this record the only question which the surrogate passed upon was whether or not there was a contract between deceased and claimant for the performance of legal services. The testimony as to the existence of such a contract was supplied by James S. Scott, claimant’s brother, whose credibility is certified to by all parties. Mr. Scott testified explicitly to the existence of such a contract. His testimony is unimpeaehed, and, therefore, it seems to me that the decision of the surrogate in holding that there was no contract is contrary to the undisputed evidence.