The jury must have found that the decedent agreed to leave the plaintiff $36,000 in money or in land. The evidence does not with sufficient clearness show that such agreement was made. Whether the evidence sufficiently shows an agreement to leave her the farm is not decided, as a new trial is required and the complaint does not specifically *893allege such an agreement. The judgment and order should he reversed and a new trial granted, costs to abide the event. Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Burr, J., read for reversal and dismissal of complaint.
Burr, J.:I think that the evidence fails to establish any contractual relation between plaintiff and decedent with that degree of clearness and cogency which is required in actions of this character. Construing the evidence of most of the witnesses called by plaintiff most favorably for her, it indicates nothing but an unexecuted testamentary intention upon the part of defendants’ intestate. As to the testimony of the three or possibly four witnesses who did testify to facts which, if accepted, might establish a consideration for his promise, it is sufficient to say that either they were interested witnesses testifying to alleged admissions of decedent or their testimony was so discredited upon cross-examination that it afforded no basis for any verdict against defendants. I concur in the reversal of the judgment and order, but I go further and think that the motion made at the close of the entire ease to dismiss plaintiff’s complaint should have been granted. Judgment and order reversed and new trial granted, costs to abide the event.