_On November 23, 1901, one Antonio Tufani, the son of the defendant herein, died. The funeral was conducted by the plaintiffs, who also furnished-the casket, hearse, embalmed the body and rendered services in connection with the burial. The widow of the deceased was subsequently appointed administratrix; and, there not being sufficient personal property left by the decedent to pay his debts, she made a petition on October 17, 1905, to the Surrogate’s Court of this county, asking leave to sell the deceased’s interest in certain real property owned by him. In this petition she set forth, among other things, that publication of a notice to creditors to present their claims against the estate of the said deceased had been com*501menced January 21, 1905, and ended July 22, 1905; and the petition contained a list of the claims presented against the estate which remained unpaid, among which was the claim of these plaintiffs, amounting to the sum of $468. This claim, as it appears in the record, was made against the “ estate of Antonio Tufani,” was dated December 7, 1904, and accompanied by the affidavit of Francesco Ruggiero, one of the plaintiffs, in which he swears: “ The annexed statement of the account of said firm against said estate is just, true and correct.” On April 9, 1906, a referee was appointed by the surrogate to “ hear the allegations and proofs of all the persons interested in the application and to report his opinion thereon together with the testimony, etc.” The plaintiffs appeared before said referee and made proof of their claim. Francesco Ruggiero,' one of the plaintiffs, was sworn and testified that the services rendered and the articles furnished for and in connection with the burial of the deceased were reasonably worth a sum aggregating $468, giving in detail each service rendered and the material furnished, with its reasonable value. This witness also testified that he was ordered to attend the funeral of the deceased by “ Mr. Tufani and the son-in-law of the deceased;” that Mr. Tufani came to his office and gave him power to take charge of the body, which he did; that as to the style of the funeral nothing was said at that time, but that, when the body of the deceased was brought home, “ he told me what he wanted.” These questions were then asked of and answered by him: “ Q. When you say ‘he ’ you mean the father ? A. I mean the father and son-in-law. Q. Did he tell you who was going to pay for the funeral? A. We did not talk about it. Q. Nothing was said about it? A. Fothing.” Thereafter the referee made his report, and stated that in the schedule accompanying the same were set forth the debts of said deceased and claims against his estate which had been duly proven and established as valid and subsisting claims; and in the schedule appears the plaintiffs’ claim for funeral expenses fixed at $300. The total amount of debts was stated to be $1,639.14. The total amount of personal property owned by decedent at the time of his death *502was $109.39, and his .interest in the real property was shown to be $4,262.50, and that it had been contracted to be sold for that sum. The surrogate confirmed the report of the referee, and directed a sale; in which decree of sale he adjudged that “ the claim of F. Buggiero & Son up to the amount hereinbefore stated ($300) is a reasonable charge' as against the estate for the funeral expenses of said decedent, and to such amount is a valid and subsisting charge against said estate.” All of the foregoing proceedings appear in and form a part of the record in this case. On July 24, 1906, the plaintiffs herein began this action against this defendant. In their complaint, verified July 14, 1906, they allege in substance that on December 1, 1904, at the request of this defendant, they rendered services and furnished materials, in and about the funeral of Antonio Tufani; that the reasonable value of such services and materials is $468, and they allege that this defendant promised to pay the same. The complaint was amended upon the trial by reducing the amount claimed to $168. Their itemized bill of particulars contains the same items, and charges therefor, as were contained in the bill presented against the estate of said Tufani. Upon the trial Francesco Buggiero was sworn and testified, in detail, to each item contained in said list and to all of the items except two, one of $20 for services in attending the funeral and one for thirteen coaches at $5 each; and the witness testified that the defendant’s attention was especially called to each of said items, the prices were told him and were fixed, and that the defendant expressly promised and agreed to pay the prices charged therefor. As to those two excepted- items, above referred to, he testified that a reasonable charge therefor would be $20 and $65, respectively. The plaintiffs had a judgment .herein' for $168, being the difference between the $300 allowed by the surrogate and the total amopnt of the claim. The defendant squarely contradicted this testimony, and swore that he never promised and agreed to pay the funeral expenses of the deceased. It was conceded upon the trial that no appeal had ever been taken from the decree of the surrogate; and the defendant saved all his rights to have the evidence taken *503reviewed upon appeal, by timely objections and exceptions thereto, and motions to dismiss the complaint.' We do not think that, under the circumstances disclosed by the testimony in this case, the plaintiffs should be allowed to recover against this defendant. When the plaintiffs furnished the materials and rendered the services they must necessarily have given credit, either to the persons who ordered them or to the estate. That the plaintiffs gave credit, to the estate is evident. When they presented their claim, and gave evidence in support of it before the referee, no pretense was made that any person had contracted with and agreed to pay them for. their services, etc.; and the plaintiff, who testified to the reasonable value of the expenses, declared positively that nothing was said between himself and the defendant as to who was to pay for such expenses. Upon the trial, however, it will be seen that the plaintiffs not only changed their claim, as presented to the referee and set up in their complaint herein, from a charge for the reasonable value of the services rendered and .materials furnished to an express agreement made by defendant to pay for the same at an agreed price, but they changed the testimony to fit the requirements of the new position taken by them. If their first position, with testimony given in support of it, was true, the last was untrue. Another element in the case, tending to cast discredit upon the position now assumed by the plaintiffs, is that before the referee the plaintiffs testified that the defendant and a son-in-law of the deceased gave the order to plaintiffs, so that if any liability was created on the part of the defendant it was equally a liability on the part of the son-in-law; but upon the trial the plaintiffs make no mention of the son-in-law. The witness called by the plaintiffs to corroborate their last version of the matter does not add much weight to plaintiffs’ testimony. This witness was one of the plaintiffs’ drivers, and he was, therefore, an interested witness. He testified that he did not hear all the conversation, as he had to work in the house; and as to those portions which he testified that he did hear, he merely repeated the words of the plaintiff who had preceded him on tire stand, the language used by him being so nearly identical *504with that used by the plaintiff as to excite suspicion as to its correctness. Under these circumstances, and in view of the positive testimony of the defendant that he made no express promise to pay the plaintiffs, it is evident, as before stated, that the plaintiffs relied upon the estate of the decedent for compensation, and the attempt to charge the defendant therewith was an-afterthought; and it must be held that the judgment is not supported by credible testimony.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment affirmed, with costs.