dissent">Gildersleeve, J. (dissenting).

The complaint in this action, as illuminated by the bill of particulars, alleges that plaintiff, a nephew of one Peter McCullough, deceased, at the request of the widow of said deceased, expended money for meat, groceries, wines, liquors, cigars and other refreshments, on 'the occasion of his uncle’s walze, and demands judgment against the executors, in their representative capacity, that the outlay may be made a charge upon the estate. The demurrer by defendants, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, was sustained in the court below. The appeal to this court brings up the question of the sufficiency of the complaint. It appears from the allegations of the complaint that the expenses in question were incurred by a relative of the deceased; that they were independent of the undertaker’s charges, and were not ordered or authorized by the executors of the will. There is no allegation that the executors failed to properly inter the body of the deceased. Where executors fail to bury the remains, the law implies a promise by them to pay one who provides a burial and incurs and pays the necessary expenses thereof. This obligation, according to the decision, rests upon the right of every one to a decent burial after death. Our revised statutes (2 E. S., § 16) recognizes this duty in that the executors- are prohibited from any interference with the estate until after probate, except that they may discharge the funeral expenses. As was said in Patterson v. Patterson, 59 N. Y. 574, “ From this duty springs a legal obligation, and from the obligation the law implies a promise to him who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable.” The plaintiff herein did not direct the burial nor did he pay the under*545taker. His claim is exclusively for refreshments furnished for the wake. We can find no case where a recovery for a claim of this character has been sustained. The case of McCue v. Garvey (14 Hun, 562), does not support the appellant’s contention. The court in that case held that the necessary and proper expenses for the interment of a dead body are a charge upon his estate, and that the duty of burial rests primarily upon the personal representatives, and the law will imply a promise to pay him who, in the absence of such representatives or from the necessity of the case for any reason, incurs the expense of a proper burial. Should we sustain this complaint, we would impose upon executors the duty of supplying provisions, liquors, wines and cigars at funeral obsequies. We are of opinion that refreshments on such occasions are not a right of either friends or relatives.

The judgment sustaining the demurrer should be affirmed, with costs.

Judgment reversed and demurrer overruled, with leave to defendants to answer upon payment of costs of this appeal and of the court below.

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