#### Abbie Lasher, Appellant, Respondent, *v.*Thomas F. McDermott, as Executor, etc., of Rose Quest, Deceased, Respondent, Appellant.

Third Department,

May 7, 1913.

Decedent’s estate—action upon contract for services rendered to testatrix — complaint — quantum meruit — stay.

Where, in an action to recover the value of services rendered, and the amount of moneys advanced to and for the defendant’s testatrix, because of her breach of her contract to make compensation therefor by the devise and bequest of her residence and furniture to the plaintiff, the plaintiff alleged a specific contract with the testatrix, the precise nature of the service performed, and the exact consideration agreed upon between the parties, portions of the complaint should not be stricken out so as to limit the plaintiff’s recovery to a *quantum, meruit.*

An order denying the defendant’s motion for a stay of proceedings until the payment of costs in a former suit affirmed.

Appeal by the plaintiff, Abbie Lasher, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 6th day of February, 1913, granting the defendant’s motion to strike out certain portions of the complaint as irrelevant.

Also an appeal by the defendant, Thomas F. McDermott, as executor, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 6th day of February, 1913, denying' the defendant’s motion for a stay of proceedings until the payment of costs in a former action.

*Charles B. Templeton,*for the plaintiff.

*Pierre E. Du Bois,*for the defendant.

*101Howard, J.:

The first action was in equity, the complaint demanding specific performance of a contract made between the plaintiff and Rose Quest, the testatrix. The trial court determined that specific performance could not be had, and undertook to decree substituted performance. On appeal (144 App. Div. 843) this substituted performance was held to be inequitable as between the various legatees. This action is brought in law; a specific contract with the testatrix is alleged; the precise nature of the services to be, and which were in fact, performed, is pleaded; the exact consideration for the services agreed upon between the parties is alleged. The plaintiff is not seeking to recover on *quantum meruit*but upon contract.

It is elementary law that a contract made by a person can be enforced against his estate. The contract here may have fixed the compensation to be paid for the services at a much higher figure than is ordinarily paid.for such services, and at a higher figure than expert witnesses would testify that the services were worth. But the plaintiff may not have been willing to perform the services at a less figure than the contract price; and it may be assumed that if the plaintiff had believed that there was danger of a repudiation of the contract as to consideration, she would have refused to enter into it. To force her to have the value of her services measured by the market price vitiates an essential part of the contract, a part on which she undoubtedly confidently relied in making her arrangements to perform the services. If any part of the contract can be enforced it can all be enforced. Suppose the testatrix had agreed to pay the plaintiff by a provision in her will $1,854.25 in money for her services, could not this contract be enforced against the estate ?

The contract made in *Collier*v. *Rutledge*(136 N. Y. 621) contained no fixed, definite thing or amount to be given by the will. It was indefinite, the intestate simply saying that ‘c he * * "x" would provide for her in his will.” In that case the court remarked: “It [the contract], however, fixes no rule by which the damages can be measured in case of default. What should be the extent of the provision is not expressed.” It may be inferred from this language that if the *extent*of the *102provision had been fixed by the contract in that case, as it has in this, that *extent*would have been adopted by the court as the measure of damages. It was not decided upon the appeals from the previous- judgment that the plaintiff in an action at law can only recover upon a *quantum meruit;*therefore, there is no reason here to limit her complaint to that form of pleading.

Even if this court believed the plaintiff should be held down to the *quantum meruit*theory, the 4th paragraph of the complaint would be meaningless if disassociated from the 3d, and, instead of clarifying and simplifying the issues, this mutilation of the complaint would render the pleading unintelligible and the issues uncertain.

The order striking out paragraphs of the complaint should be reversed and the order denying the motion to stay the plaintiff until costs are paid should be affirmed.

All concurred.

On plaintiff’s appeal order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. On defendant’s appeal order affirmed, with ten dollars costs and disbursements.