In re Accounting of Gorden

Chief Judge Desmond (dissenting).

I vote to affirm. The Appellate Division had, under section 309 of the Surrogate’s Court Act, the same power as the Surrogate to decide these questions of fact. The Surrogate had dismissed the claim in the erroneous belief that the meretricious relationship between claimant and decedent forbade recovery as matter of law. The Appellate Division, properly rejecting this mistaken view of the law (Rhodes v. Stone, 63 Hun 424), dealt with the questions of fact as to rendition of services, value of services and agreement to pay for them. The character and extent of claimant’s work in *77the operation of this inn for many years were proven beyond, dispute. There was satisfactory evidence of promises by decedent to pay for those services, and this testimony given by four different witnesses was not incredible or even suspect. The allowance made by the Appellate Division was modest in amount. I see no reason why it should be set aside.

Judges Dye, Froessel and Burke concur with Judge Van Voorhis; Chief Judge Desmond dissents in an opinion in which Judge Fuld concurs; Judge Foster taking no part.

Order reversed, etc.