Hannah Rose, Appellant, v. James E. Armstrong and Confucius L. Geer, as Administrators, etc., of Larkin K. Geer, Deceased, Respondents

Hannah Rose, Appellant, v. James E. Armstrong and Confucius L. Geer, as Administrators, etc., of Larkin K. Geer, Deceased, Respondents. Third Department, June 25, 1907. Contract — loan to be-repaid at borrower’s death.—evidence identifying money. In an action to recover against an estate for pension moneys advanced to the decedent under an agreement by him to repay the same at his death out of the ■ estate, a nonsuit should not be granted when there is proof that the plaintiff, whose sole income was her pension, made advances to the decedent who frequently admitted that,he owed her a large sum. Assuming that under the. complaint the plaintiff was only entitled to recover pension moneys (which is too technical a construction) proof that the plaintiff had no property or source of income other than .pension money is evidence identifying the moneys advanced., Appeal by the plaintiff, Hannah Bose, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Sullivan on the 8th day of January, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case at-a trial at the Sullivan Trial Term, and also from an order entered in said clerk’s office on the 24th day of December, 1906, denying the plaintiff’s' motion for a new trial made upon the minutes. ' Frank S. Anderson, for the appellant. John L. Lyons, for the respondents. [MAJORITY — Kellogg, J.:] Kellogg, J.: The corhplaint alleged an agreement by which if the plaintiff: would let the intestate have her pension money from time to., time to be used in his business so long as. he lived, such advances would be repaid at his death out of his estate; that she fully carried' out the agreement and loaned- and paid- over to him all of. the pension money received by her, amounting to'$4,000. The evidence showed, quite clearly-that the plaintiff had- no income excepther pension $ that she.' was living as housekeeper- with .the intestate and was a: woman quite advanced in years, and shows- several advances of money to him, some of which Were identified as' pension moneys and others were' not so- identified, and frequent admissions by the intestate that he owed the plaintiff a large sum, stated from $2,00,0 •to $3,000, A nonsuit was granted and the complaint dismissed, presumably upon the theory that it was not shown that the moneys which the plaintiff loaned and advanced to the intestate were pension ■ moneys. The evidence tends quite clearly to show an indebtedness. to the plaintiff for moneys loaned, and it is not necessary to deter-, mine whether the'plaintiff under her complaint must make it appear that such moneys were pension moneys, for if it is assumed that, such proof must be made the fact that the plaintiff had no other property or source of income was evidence with the other facts to be considered upon that subject. We think the court took too' technical a- view, of the pleadings and the evidence, and under the complaint it was not necessary .to prove that all the. moneys which the plaintiff advanced under the contract were .actually pension, moneys. Any other moneys advanced would f urnish the "same liability, and the real question is whether the, plaintiff loaned and advanced the sums as claimed by her. ■ The judgment should, therefore, be reversed and a new trial granted, -with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs ' to appellant, to abide event.