The plaintiffs furnished materials and rendered services relative to the burial of a son of the defendant. The plaintiffs claim that the materials and-services were of the reasonable value of $468. The widow of the deceased, having been appointed administratrix by the Surrogate’s Court of Hew York county, the plaintiffs presented their claim against the estate. The Surrogate’s Court determined that the plaintiffs’ claim “ to the amount hereinbefore stated ($300) is a reasonable charge as against the estate for the funeral expenses of said decedent.” The sum of $300 was paid the plaintiffs by the estate, and the present action was brought against the defendant for $168, the difference between the alleged market price of the services and materials and the amount with which the estate of the decedent was charged by the Surrogate’s Court. It appears from the testimony * that the defendant ordered the materials and services which the plaintiffs supplied. This fact has been found by the trial justice and the evidence is sufficient to support, the finding. There was no material contradiction between the testimony given by Ruggiero before the referee and that which he gave upon this trial. "When testifying before the referee he said that the defendant had selected all the materials which were subsequently furnished. It is true that he testified that nothing was said as to who would pay for the services and materials, but this apparent contradiction was explained, when it was shown that Ruggiero had two interviews with the defendant and that nothing was said as to who should pay for the funeral expenses at the first interview. This was the only interview in reference to which Ruggiero was questioned before the referee. An examination of the testimony of this witness given upon the trial and that given before the referee discloses no reason why his - testimony should be characterized as false. His testimony was corroborated by that of another witness; while the unsupported testimony of the defendant, contradicting *499Ruggiero, was weak and inconclusive. The defendant admits that he told Ruggiero, in reference to the funeral, with “ What you do I am satisfied;” and, when asked specifically whether he requested Ruggiero to attend to the funeral, he replied, merely, “I don’t remember;” and, when pressed further upon this point, he answered, “ I told you I forgot if I told him so.” The fact that the plaintiffs presented their claim for payment against" the estate of the decedent does not prevent them from suing upon their contract obligation, when the whole or a part of the debt due is not paid by the estate. When one dies, leaving an estate, the duty of burial is upon the executor. Patterson v. Patterson, 59 N. Y. 574. Under the statute at present existing, an executor or administrator must pay out of the first moneys received “ the reasonable funeral expenses of the decedent, and the same shall be preferred to all other debts and claims against the deceased.” Code Civ. Pro., § 2729, subd. 3. The executor is also prohibited from interference with the estate until after probate, except that he may discharge funeral expenses. 2 R. S. (1st ed.), p. 71, § 16. “From this duty springs a legal obligation; and from the obligation the law implies a promise to him, who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expenses thereof as are reasonable.” Patterson v. Patterson, supra. It has also been held that, before subdivision 3 was added to section 2739 of the Code of Civil Procedure, by chapter 293 of the Laws of 1901, an executor was not liable for funeral expenses, when the funeral was ordered by and credit given to another person. Lucas v. Hessen, 13 Daly, 347; 3 Williams Exrs. (7th Am. ed.) 303. But, assuming this to be the present rule, it does not follow that one who makes an express contract to pay for funeral expenses is discharged from the obligation of his contract because the estate has paid a part of the amount which he contracted to pay. The undertaker furnishing the materials cannot, of course, recover twice; but, when the estate has paid him a part of the debt, incurred by another, he may recover upon the express contract for the balance of the "debt. When the estate pays *500the undertaker what the Surrogate’s Court deems the reasonable funeral expenses in view of the condition and station in life of the decedent, the right of the undertaker to sue for the balance, upon an express contract made with a third person, is not affected or impaired. The undertaker could, doubtless, have sued -the defendant in the first instance upon the express contract, and have recovered the full amount of the contract debt. In this event, the defendant could have recovered (from the estate such part of the contract price which he paid the plaintiffs as would constitute a reasonable expenditure for this purpose against the decedent’s estate. As to whether or not the plaintiffs, if they failed to recover from the defendant the full amount. of the contract price, could have sued the estate for the balance, is not now before us for decision. A determination of this question would, doubtless, require a consideration of the present statutory provisions as to the liability of an estate to pay for funeral expenses. Whatever the rule may be on that subject, it is clear that the contract obligation, which' the defendant was under to the plaintiffs, cannot be impaired by the fact that the estate has paid the plaintiffs something on account of this debt.
Judgment affirmed, with costs.
Brady, J., concurs.