The opinion
Barnard, P. J.
William Lang is an executor of the will of Eliza Stringer, deceased. The claim is made up of taxes paid and for board of testatrix in the last years of her life. The claim was rejected by the surrogate. The claim was proven so far as to call for a judgment for the claimant for some amount. He paid the taxes, and gave the receipts to deceased. She asked him to pay the taxes, and they were taxes upon her land. The claim for board and services was proven also for an amountequal to their value. The testatrix owned a house and two or three acres of land. She occupied it herself, with a servant girl and a young man. The young man was about to leave, and the testatrix sent for Lang, and asked him to move there. She said to him that she could not afford to run the place, and if lie came there she would have a home for a life-time, and that she could not afford to board out. After some hesitation, Lang consented to move on the place, and after that for some four years he kept up the place, and boarded the deceased until two or three months before her death. The claim which shall be found to be the difference between the fair rent of the premises, or of that part of the same which Lang occupied, and the value of the board should be allowed. There is no proof that there was any special contract between the parties. There is a great conflict as to the facts which would go to the amount of the claim. No finding is made as to the claim itself. It is simply found that there was a special contract between the parties, that it is not proven what it was, and that, therefore, the claim be rejected. An executed special contract may be sued upon generally, and tile contract price will control the amount of the recovery. Higgins v. Railroad Co., 66 N. Y. 604 . The proof shows a cause of action, and a legal implication arises that the deceased promised to pay for what was furnished. There is expressed proof of a promise. Tiie deceased accompanied the request by the statement that the claimant would lose nothing by coming. The decree should be reversed, and the proceedings remitted to the surrogate for a rehearing, with costs to abide event.