In re the Judicial Settlement of the Account of Cozine

Hirschberg, P. J.: This appeal has been reargued by order of the court. (See Matter of Cozine, 108 App. Div. 354.) "On the original hearing we modified the decree by striking out certain items which had been paid for taxes, and affirmed the decree as thus modified. (See Matter of Cozine, 104 App. Div. 182.) The principal error then alleged by the appellant related to the reception of evidence given by the administrator involving personal transactions between himself and the intestate. We held that this evidence was chargeable to tlie scope and form of inquiries addressed by the appellant’s counsel to the administrator and that the learned surrogate did not err in refusing to strike it out after it had been thus elicited. We .also held, however, that the burden of proof -was on the appellant as contestant to show that certain payments made by "the administrator were improper charges against the estate. In this we erred because the alleged payments were of the administrator’s personal or individual claims against the estate. This fact was not brought to our attention. In such a case there is no presumption in favor of the claims, but on the contrary the rule of law applicable requires that the claims should be supported by clear and satisfactory evidence. (Matter of Humfreville, 6 App. Div. 535; Matter of Smith, 75 id. 339, 341.) The reargument has been had only on the question of the sufficiency of the proof to establish three disputed items claimed by the ádininistrator to be proper charges'in his favor against the estate, amounting respectively to the sums of $2,000, $1,300 and $1,450. The appellant, in moving for the rearguinent distinctly disclaimed -any desire to reopen the question of the competency of the evidence given by the administrator-as to the. personal transactions with the deceased. In view of this fact and accepting that evidence as competent^ we are of the opinion that the $2,000 item was sufficiently proved.. Indeed, the, learned counsel for the respondent conceded on the reargument that the record contained evidence supporting that item. We think otherwise, however, as to the two other items, that is, the one of" $1,300 charged by the administrator as his equity in the house Mo. 803 Sterling place, borough of Brooklyn, and the one of $1,450 charged by the administrator for money loaned to the deceased to apply upon the purchase price of the [24] house'.No. 1202 De Graw street, in-said borough. As to those two ' items a referee should be' appointed- pursuant to section 2586 of theiGode of Civil Procedure, to take further testimony,, the burden of proof being on the administrator in'the establishment of the validity of these claims,, the referee to report such testimony -to this court with Ids opinion. Jenks, Hooker and Mileek, JJ., concurred. Reference ordered to take additional testimony, under section 25,86. 6f the Code, as to the twin, items of $1,300" and $1,450 respectively. . " ,