29 A.D.2d 759 | N.Y. App. Div. | 1968
Defendants (the son and daughter-in-law of plaintiff’s testatrix) appeal, as limited by their briefs, from.so much of a judgment of the Supreme Court, Queens County, dated July 5, 1967, as is in favor of plaintiff against them, after a non jury trial. Judgment reversed insofar as appealed from, on the law and the facts, without costs; complaint dismissed as to defendant Dorothy E. Magner, without costs; and new trial on the limited issue of damages on the first cause of action granted as against defendant James P. Magner, with severance of said cause as to him. The decedent and her son, defendant James P. Magner, entered into an agreement whereby she transferred real property to him and he agreed to pay to her “ all sums necessary for her support and maintenance for and during her life time”. Subsequently she transferred other real property to defendants, who supported her and took care of her until March 4, 1962 when they had her committed to Kings Park State Hospital, a mental institution. In or about September or October, 1962, she was released from Kings Park and she resided with one of her daughters until her (decedent’s) death on December 25, 1965. In June, 1964 the decedent instituted this action, based on defendants’ alleged breach of the agreement for her support. Plaintff continued the action after the decedent’s death. As damages the trial court awarded plaintiff $115 a week for the period from March 4, 1962, the date that the decedent was confined in Kings Park, to December 25, 1965, the date of her death, a total of $22,770, plus interest. The amount awarded was based on the testimony of a nursing home administrator, allegedly an expert, that in 1962 the weekly rates charged in her nursing home for a private room, a fair and reasonable rate, were $110 to $115, that these rates were increased subsequently and that there were other expenses in the nursing home. This amount was fixed by the court despite the fact that the decedent was never in a nursing home and that there was