Argued May 18, 1955.
[143 N.Y.S.2d 249] Francis J. Riordan, Lackawanna, for plaintiffs-respondents.
Edmond J. Shea, Lackawanna, for defendant-appellant.
Before McCURN, P. J., and VAUGHAN, PIPER, WHEELER and VAN DUSER, JJ.
McCURN, Presiding Justice.
Pavo Resan upon the death of his wife in June 1951 became the sole owner of a family dwelling situated at No. 32 Wilson Street in the City of Lackawanna, New York. On the 26th day of July 1951 he executed a deed conveying the said property to himself and the defendant Stephen P. Baich 'as joint tenants and not as tenants in common'.
The plaintiffs allege and the trial court has found that in October 1951 the plaintiffs and Mr. Resan entered into an agreement whereby the plaintiffs agreed to take care of Resan, his house and property and to furnish him with board, clothes and other incidentals for the remainder of his natural life in consideration for which the said Pavo Resan agreed that the plaintiffs upon his death would become the sole owners of all of his property. Resan, pursuant to such agreement, made plaintiffs beneficiaries under his insurance policies, changed his bank accounts to joint accounts with the plaintiffs and made a will in which the plaintiffs were named as sole legatees. The plaintiffs allege and the trial court has found that the plaintiffs performed all of the conditions of the agreement upon their part.
In view of the agreement and the will which Resan had executed, the plaintiffs, expecting that they would become the sole owners of the real estate upon the death of Resan, treated it as their own and made improvements thereon. Pavo Resan died in January 1954 and shortly thereafter the defendant Baich asserted ownership and sought possession of the real property by virtue of the joint deed which he held with Resan. The plaintiffs brought this action for equitable relief seeking amongst other things that the real property be impressed with a lien in the amount of the reasonable value of the upkeep, taxes and improvements made and paid for by the plaintiffs. The appeal is from the judgment establishing a lien upon the real estate in question in favor of the plaintiffs in the sum of $4,500.
The testimony evidencing the agreement between the plaintiffs and Pavo Resan was given by the plaintiffs themselves over the objection of the defendant-appellant that the plaintiffs were not competent witnesses to give such testimony by reason of section 347 of the Civil Practice Act. Although these plaintiffs are executors under the will of Resan they bring this action in their personal capacity and not as representatives of the estate. Their interest arises from a personal transaction with the deceased and their claim against the defendant Baich is likewise a claim [143 N.Y.S.2d 250] against a person who derived his title or interest from a
deceased person by assignment or otherwise, see Pope v. Allen, 90 N.Y. 298; Matter of Conklin's Estate, 259 A.D. 432, 20 N.Y.S.2d 59.
We conclude that the plaintiffs were not competent to testify as to their alleged agreement with the deceased and that the testimony was erroneously received.
Eliminating the testimony of the plaintiffs there is insufficient testimony in the record to evidence the making of the agreement. Even if the agreement had been established by competent evidence, we still think that the judgment appealed from would have to be reversed.
One of the essential elements of an equitable lien upon real property is that the improver of the property made such improvements in good faith and under a color of right. A common example is where the legal title was in the one improving the real property and the equitable title was in someone ...