2 N.Y.S. 127 | N.Y. Sup. Ct. | 1888
Lead Opinion
The plaintiff presented to the defendant, as executor of the last will and testament of Mary E. Payne, deceased, a claim against her estate which was rejected, and finally referred under the statute which provides for the settlement of claims against the estates of deceased persons. The cause was tided before the referee, who reported in favor of the plaintiff, and his report was confirmed by the special term, and judgment was entered in favor of the plaintiff against the defendant; and this appeal is brought by the defendant from such judgment and order.. The principal question involved is whether, upon the facts, in regard to which there seems to be little dispute, the law establishes a cause of action in favor of the plaintiff against the estate, of the deceased.- Mary E. Payne, the testatrix, was received for treatment into the Homeopathic Hospital at Albany, under the following order of Richard Parr, an overseer of the poor of said city: “Ho. 16. Albany, August 7, 1883. The superintendent of the Homeopathic Hospital is directed to admit Mary E. Payne into the hospital, there to be taken care of and provided for according to the rules and regulations of the said institution. Richard Parr, Overseer of the Poor. This order is only for the time specified.” She was not placed in the charity ward, but occupied a room in the upper part of the building. Jacob H. Ten Eyck, a witness produced by the defendant, testified as follows upon his cross-examination. “Question. Did you know Mary E. Payne? Answer. I did. Q. How long did you know her? A. She was in the hospital when I became treasurer, in 1884. Q. You became acquainted with her subsequently to that period? A. While I was treasurer. Q. Was she in the general ward of the hospital, or was she in a private room? A. She was in a private room. Q. Have you any fixed price for patients in the hospital who occupy the wards? A. In the charity ward they pay four dollars a week from the city. If a patient comes in that is poor, isn’t able to pay herself, don’t come with a permit, and is willing to go in the charity ward, we get five dollars a week. Q. Patients who are received in the hospital under permits issued by the overseer of the poor of the city of Albany are placed where? A. In the charity ward. Redirect-Examination. Q. The room Mary E. Payne was in at the time of her death, and had been for some time previous to her death, was in a icom on the top floor, next to the roof? A. Yes, sir. Q. Slanting roof? A. Yes, sir. Q. What, in ordinary houses, would be denominated the garret? A. An attic-room,—a good-sized room. ReerossExamination. Q. The price for a room is greater than the price charged for a patient in a charity ward? A. Yes. We have had as high as ten dollars a week, in that same room, for a pay patient. Redirect-Examination. Q. Sometimes this charitable institution does charity? A. Yes, sir. Q. In other
Learned, P. J., concurs.
Dissenting Opinion
I dissent. The deceased was admitted to the hospital as a poor person, and there is no evidence or finding of any mistake or misrepresentation. Money or support given in pure charity cannot be recovered for upon the surmise that the charity was not worthily bestowed.