243 A.D. 581 | N.Y. App. Div. | 1934
Judgment in favor of the plaintiffs on an oral contract made by the decedent with them for services rendered and to be rendered unanimously affirmed, with costs.' The claimed issue of fact founded on the second defense had no support in the evidence. Its submission in the manner desired by the defendant was, therefore, properly refused, assuming that the question is sufficiently saved in this record. In effect the issue of fact desired to be sumitted to the jury was submitted in the main charge of the court which required before the plaintiffs could prevail that the jury find that the agreement asserted by these plaintiff^ had been made and that that agreement was to furnish a home free and clear “ in addition to the provisions which he did make in his will for them.” The only evidence in support of the claimed issue of fact in this case which the defendant could invoke was that contained in the two bequests. The presumptions of law attaching to these two bequests precluded the arising of any
