In re the Judicial Settlement of the Account of Nickerson , 260 A.D. 964 ( 1940 )

Claimant presented to the administratrix of the estate of William H. Bevins, decedent, a claim for damages in the sum of $150 in connection with an alleged breach of warranty in the sale of a horse. It appears that claimant purchased a team of horses from decedent on December 1, 1937, and gave a chattel mortgage to cover a portion of the purchase price. Decedent died on January 2, 1939. During decedent’s lifetime claimant made payments on the mortgage aggregating the sum of thirty dollars. Claimant used the horses from the date of purchase until the spring of 1939, without any objection. After decedent’s death, without protest, he gave a new chattel mortgage to the representative of the estate covering the purchase price of the same horses. In May, 1939, subsequently to the death of decedent, claimant presented his claim against the estate which was rejected. On the final accounting the surrogate tried the issue and determined that the proof was insufficient to establish a claim against the estate. The evidence sustains the finding. Decree affirmed, without costs. Crapser, Bliss, Heffernan and Foster, JJ., concur; Hill, P. J., dissents.