Upon a subsequent motion for reargument the following opinion was handed down: *Page 132 This motion for reargument is based upon the erroneous supposition that the points now made were overlooked. They were carefully considered; but as they were not specifically noticed in the opinion, I will now give them brief consideration. As the judgment of the Special Term was reversed by the General Term upon both the law and the facts, the facts were before us for consideration just as they were before the General Term.
The claim is made that after the work was all done by the plaintiff, the defendant ratified the agreement made by Osborn that the estate would pay plaintiff. Whether there was such ratification or not depends solely upon the evidence of the plaintiff and defendant. The plaintiff had the burden to show it, and his evidence tends somewhat to show (but not with entire certainty,) that there was such ratification. But the defendant positively denied this, and the circumstances tend to sustain him. Hence we should be reluctant to hold that there was sufficient evidence of the ratification. But if we give full force to all plaintiff testified to, the facts are not sufficient to show that a charge upon the estate was created. As shown in the former opinion, there was no agreement sufficient to charge the estate before the work was done. There was at most a personal charge against the defendant. Then, in order to transfer this charge from him to the estate, and to give plaintiff a cause of action, which he did not before have, what was necessary? It could only be done in one of two ways. First. By an agreement based upon some new consideration; or second. By an assignment of the lien or claim which the defendant had upon the estate for these expenses. There is no pretence that there was any such new agreement, and the evidence does not show that the defendant meant to assign, or that the plaintiff expected he would assign, any lien or claim he had upon the estate. In such a case, where a party has done work upon the personal responsibility of the trustee, he can get no lien upon the trust estate by the mere promise of the trustee to pay him out of the estate. There is no emergency which then *Page 133 authorizes the trustee to create a lien upon the trust estate, and all he could do would be to transfer his. That was not done in this case.
The motion must be denied.
All concur.
Motion denied.