50 N.Y.S. 563 | N.Y. App. Div. | 1898
It is the settled rule in this State that where services "are rendered by one person to another, in pursuance of a mutual understanding
The. services here were not rendered by the plaintiff gratuitously nor in the mere hope of a legacy. _They were rendered upon the distinct understanding of both parties that compensation should be made therefor and that the plaintiff should be fully rewarded. Indeed, the decedent attempted to fulfill this obligation as is clearly evidenced by his will. In that respect, however, he failed, and the result is that he has not fulfilled his clearly implied promise to adequately compensate and reward the plaintiff. “ It is not material,” as was said in Robinson v. Raynor (supra), “ whether the failure to make compensation (where there was the understanding that it should be made) arose from accident or design.” The same principle was enunciated in McRae v. McRae (3 Bradf. 199). Referring to a promise to pay for work by testamentary provision, Surrogate Bradford said: “ It would be a piece of gross injustice to deprive a party who had been promised compensation in that way of all remedy, and it makes no difference whether the remuneration is prevented as contemplated, by accident or design. In either case there has been a failure to pay.” In the present case the deceased attempted to comply with his agreement, but failed, owing probably to ignorance. The legal effect of what he did and of what he failed to do, was that no efficient testamentary provision was made; and, consequently, there has been a complete failure to comply with his obligation.
As to the verdict, we can only say that it was supported by ample evidence of the services rendered and sufficient evidence of their value. The amount awarded was reasonable, and was arrived at under a careful charge by the learned trial justice, to which no exception is taken. The verdict gives the plaintiff but about $3,000 per annum, although the decedent himself admitted that his nephew in coming to him had abandoned a business worth' at least $5,000 per annum.
The defendant asks for a new trial principally because of the
The admission of certain expert testimony requires a little more consideration. A hypothetical question was put to two witnesses which embraced, in the form of assumptions, substantially all the concrete facts proved in the case. Upon these assumptions, the witnesses were asked to give their opinion as to the reasonable value of the services. The defendant objected to the question upon' the following grounds only :. “First, that he (the witness) has not shown any qualifications to answer the question; second, that it is not such work, labor and service as calls for or permits the value to be ascertained by expert testimony ;■ and, third, that it states facts not proven.”
The last ground is clearly untenable, as we find in the record evidence tending to show each fact "embraced within the question.
As to the first ground, one of these witnesses testified that, at different times during a business career of some twenty-four years, he had employed confidential men and agents under general powers of attorney. ' The other witness testified that he himself had been a private secretary and'confidential man-for ten years; that he knew other men similarly employed, and that he knew what they received for their work. He described the work which such men generally
The more important ground of objection is the second; but we think that even that ground is sufficiently answered by the rule with regard to expert testimony in exceptional cases, which was laid down in Edegcomb v. Buckhout (146 N. Y. 332). The present case is analogous to that in its peculiar and exceptional character. It would, of course, be impossible to find any person who had rendered, or employed a person to render, precisely the same services as those rendered by the plaintiff to his uncle. The best that could be done, in such a case, would be to call those who were acquainted with services of a somewhat similar character and with their value. As was said by Judge Peckham, in the case last cited, “probably it would be impossible to show the value of such services by any individual who had herself performed precisely the same kind of services for another individual situated exactly as was the deceased, and in substantially the same neighborhood. Obviously, all that the plaintiff could do, in order to show the value of her services, was to call those people who had been engaged in the hiring of individuals to do the same class of services in some respects, although not to the same extent or precisely of the same cha/racter as those which were performed Toy the plaintiff.- * * * It was, as we have said, the' best that the situation permitted plaintiff to do; in other words, the best evidence that the nature of the case afforded, and, therefore, it was not incompetent because it left the value of plaintiff’s services as actually rendered somewhat indefinite and vague.”
Substantially the same rule was laid down in Heffron v. Brown (155 Ill. 322); Fowler v. Fowler (70 N. W. Rep. 336); Storms v. Lemon (7 Ind. App. 435), and Chamness v. Chamness (53 Ind. 301).
. In some of these cases, even the plaintiff was allowed, under the stress of somewhat similar circumstances, to give his or her own opinion, in a very general way, as to the value of the services rendered ; and the action of the court of first instance in permitting
We think that the appellant’s counsel misapprehends the hypothetical question, when he insists that the witnesses should have at least been limited, even under the rule laid down in the Buckhout case, to their peculiar knowledge of the value of the plaintiff’s services as a private secretary, and that they were not qualified to testify “ to the value to plaintiff of being induced to leave his home, change his name, reading to his uncle, sitting up with him,” and so on. The hypothetical question does not call for the opinion of the witnesses as to the value of each of these separately specified acts. All the attendant circumstances were embraced within the assumptions, not for the purpose of asking an opinion as to each separate matter so assumed, but for the purpose of illustrating, in a general way, the services as to which an opinion was sought, namely, the services rendered by the plaintiff as his uncle’s confidential agent. Counsel had a right to indicate to the witnesses just what kind of. a confidential agent the plaintiff was ; and all the attendant circumstances were a proper preface to the main assumptions as to such services. The witnesses knew the value of the services of a confidential agent under other circumstances, partly similar and partly varying, but of the same general character. It certainly did no harm to call their
It is quite evident, however, that the jury did not treat this testimony as controlling, or even as especially valuable. The witnesses in question estimated the plaintiff’s services at about twice as much as the jury did. It may fairly be presumed, therefore, that the jury took all the testimony and weighed it in a moderate and conservative way; and that this expert testimony furnished but a slight basis for their just estimate of what upon the whole was a reasonable allowance. ■
We do not think that the admission of this testimony was reversible error. The situation was a difficult one ; the exigencies of the case afforded reasonable ground for the trial justice’s action ; and it is apparent that no injustice resulted therefrom.
As to the costs, it is sufficient to say that the trial justice, upon evidence which was satisfactory to him, made the certificate required by section 1836 of the Code of Civil Procedure. This certificate was subsequently amended upon affidavits which the appellant has not chosen to present to us. We cannot say, therefore, that this amended certificate was unwarranted. The defendant is concluded thereby upon the question of costs.
Having properly awarded costs under section 1836, it was within the discretion of the trial justice, in a" difficult and extraordinary case, to grant an extra allowance. This was clearly such a case, and that discretion was fairly exercised.
The judgment and order denying the defendant’s motion for a new trial should, therefore, be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred. .
Judgment and order affirmed, with costs.