In re Sudds ( 1902 )

CHASE, J.

Assuming that the alleged agreement was signed by Miller and delivered to appellant as claimed, it is doubtful whether it made appellant a party in interest, entitling him to appear in the proceeding and to maintain this appeal. In re Evans’ Will, 58 App. Div. 502, 69 N. Y. Supp. 482; Id., 65 App. Div. 100, 72 N. Y. Supp. 495. Assuming that such an agreement is sufficient to constitute the person with whom’ the agreement is made a party in interest, nevertheless the appellant herein must fail, for the reason that he has not given any proof of the execution and delivery of the agreement, or of the performance of the services therein mentioned. Appellant, so far as he has made an individual claim to a portion of Miller’s distributive share in the estate, has done so by virtue of his individual appearance .in the proceeding, and not as attorney for Milleri The record does not disclose any original agreement or other paper signed by Miller relating to or reciting appellant’s claim, and there is no record of Miller ever having been personally present in court. Appellant’s claim, therefore, has not been 'acquiesced in, admitted, or proven. The decision of the surrogate as to the items of the executor’s account to which objections were filed would seem to be right.

It is not necessary to discuss the other questions raised by the appellant, or to determine at this time whether the decree entered after the' death of Miller is binding upon his personal representatives.

Appeal dismissed, with $10 costs and disbursements. All concur.