35 N.Y.S. 360 | N.Y. Sup. Ct. | 1895
The defendant’s testator died about September 1, 1883. This action was commenced May 8, 1885. Its main purpose was to recover for alleged services of the plaintiff, his wife, and other members of his family, performed for the decedent from in April, 1877, to the time of his death, including the expense of removing plaintiff’s furniture and other personal property from his premises to those of the testator in the spring of 1877. The defendant was the adopted son of John Clark, and after his marriage, until the spring of 1877, he resided in a house upon the farm of his foster father, and worked the farm. The latter also resided in another house upon the farm. Early in that year the defendant concluded to leave the farm, and go into business elsewhere. Thereupon the plaintiff, who owned and occupied a small farm a few miles distant, was requested by the testator to move onto the farm of the latter, occupy the house to be vacated by the defendant, work the farm, etc. The plaintiff’s wife was the adopted daughter of the decedent, and there is evidence tending to prove that he stated that she would be remembered by him in his will, and that he would do as well by her as he did by Frank. This expectation may have been some inducement to the plaintiff to go onto Clark’s farm when and as he did. At all events, such inference is permitted by the evidence. As it finally turned out, the testator gave, by his will, nothing to the plaintiff’s wife, but by it gave bis property to Frank W. Clark, the defendant. The decedent was advanced in years, and the evidence tends to prove that he was quite feeble a considerable portion of the time the plaintiff was on the farm; that the plaintiff and his wife, and more especially the latter, assisted in
Numerous objections and exceptions were taken to the introduction of evidence, and in many instances the questions raised by the objections were reserved,—some with, and others without, consent. This method of disposing of objections to evidence hás hitherto been disapproved by the courts, and it is not allowable, in practice, to-reserve questions arising upon objections to the introduction of evidence without consent Sharpe v. Freeman, 45 N. Y. 802; Lathrop v. Bramhall, 64 N. Y. 365; Wright v. Reusens, 133 N. Y. 298, 31 N. E. 215.
The defendant’s counsel took exceptions# to the rulings finally made upon such objections. In the present case the defendant was-not prejudiced by the reservations, so far as they may be deemed made without consent. And much of the evidence, to the introduction of which exceptions were taken, was rendered harmless by the fact that the subjects to which such evidence related were not considered by the referee in the final determination made by Mm, as appears by his report.
The exceptions were not well taken to the reception of the testimony of the plaintiff’s wife concerning conversations, in which she took part, between the plaintiff and the decedent, and to her testimony as to the value of the services rendered by her. His relation, as husband, enabled the plaintiff to charge for the services of the wife. He does not derive the alleged claim arising for her services from her. Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122.
While the declarations of the decedent, not in the presence of or to the plaintiff, of his purpose to induce him to come and stay upon his farm, furnished no evidence of any arrangement with the plaintiff to do so, they were admissible as corroborative of the facts in that respect appearing by other evidence. It seems that shortly prior to the time the declarations, to the evidence of which objections were taken, were made, the decedent had been advised of the purpose of Frank W. Clark to leave the farm, and had, through another, communicated that fact to the plaintiff, and his desire to have Turn and his family move onto the farm, and succeed Frank in his relation to it and to the affairs of the testator. Although the plaintiff was not in the presence of the decedent at the time of the conversation, he was in another room, and within hearing of what was said. Whether his evidence of it was admissible, within the spirit of the provisions of section 829 of the Code, may be questionable. Holcomb v. Holcomb, 95 N. Y. 316; In re Dunham, 121 N. Y. 575, 24 N. E. 932; In re Bernsee’s Will, 141 N. Y. 389, 36 N. E. 314. But as his evidence did not substantially differ from that of the three witnesses who were present, and as the only material facts to which those declarations of the decedent related were dependent upon and appeared by evidence other than that of those declarations, it is deemed un
The reception of evidence of the value of certain services, as described by the plaintiff’s wife, and based upon her description, alone, of them, ivas not error. The question thus put to the witness was in the nature of a hypothetical question. McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 77 N. Y. 178. It would have been otherwise if the inquiry had not thus been restricted. Reynolds v. Robinson, 64 N. Y. 589; In re Snelling, 136 N. Y. 515, 32 N. E. 1006.
It is urged with much force, on the part of the defendant, -that there was no liability of the decedent to the plaintiff on account of any of the matters alleged by the plaintiff, and that whatever they treated as matter of claim of either against the other were from time to time adjusted, settled, and paid. It is not deemed necessary here to amplify by statement the facts which the evidence tended to prove. But, having made a careful examination of the evidence, it is sufficient to say that the inferences fairly derivable from the evidence warranted the conclusion of the referee that the plaintiff was entitled to recover the amount hereinbefore mentioned.
The plaintiff was entitled to recover interest from the time of the commencement of the action. Mansfield v. Railroad Co., 114 N. Y. 331, 21 N. E. 735, 1037.
The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to the sum of $812.51; and in that event the judgment to be so modified, and as modified to be affirmed, without costs of this appeal to either party. All concur.