Henry J. Simon, as Executor of Abbie Stayfield, Deceased, Respondent, v. Wheel Chair Home for Incurables, Inc., Appellant

Henry J. Simon, as Executor of Abbie Stayfield, Deceased, Respondent, v. Wheel Chair Home for Incurables, Inc., Appellant. [MAJORITY] Judgment affirmed, with costs. All concur, except Dowling, J., who dissents and votes for reversal and for dismissal of the complaint, in the following memorandum: The agreement did not require the defendant to maintain Mrs. Stayfield at its home only. Had the parties to such agreement contemplated such maintenance, the inference is reasonable that they would have so provided in the contract. (See Baner v. Goldberg, 244 N. Y. 438, 441.) There is no evidence to support the finding that the defendant elected to cancel the contract, as it might have done under the fifth paragraph thereof. On the contrary, the defendant indicated beyond doubt that it had no such intention when it adopted the resolution accepting responsibility for the maintenance of Mrs. Stayfield in the State hospital. The fact that Mrs. Stayfield’s personal belongings (Plaintiff’s Finding No. 8) remained at the defendant’s home until the trial of this action speaks eloquently of the fact that the defendant considered the contract still on foot after Mrs. Stayfield had been committed to the State hospital. (The judgment is for plaintiff in an action to cancel assignment of realty and personalty.) Present— Cunningham, P. J., Taylor, Dowling, McCurn and Larkin, JJ.