In re the Judicial Settlement of the Account of Proceedings of Klett ( 1940 )

Appeal from a decree of the Surrogate’s Court of Albany County, disallowing a claim for board and lodging furnished to decedent. Decedent held by assignment a mortgage of $4,000 upon premises of claimants. The latter contended that he agreed to pay them ten dollars per week for board and room to be applied upon the principal of the mortgage, and the mortgage to be without interest. They claim that the mortgage has been paid in full and that there is a balance of $780 due to them over and above the amount thereof. The administrator claims that according to the agreement of the parties interest upon the mortgage was to pay for the board and room furnished and that in accordance therewith decedent was paid no interest. The surrogate has held that claimants failed to prove their claim by fair and convincing evidence. The record supports his decision. The surrogate properly struck out the alleged account stated. Under the circumstances disclosed possession of the bond and mortgage in question was not presumptive evidence of the validity of the claim. The decree should have directed a return of these instruments to the administrator. Decree unanimously affirmed, with costs, Present — Hill, P. J., Crapser, Heffernan, Schenck and Foster, JJ.