97 N.Y.S. 112 | N.Y. App. Div. | 1905
The complaint alleges that between the 18th day of December, 1897, and the 20th day of May, 1901, plaintiff at the special instance and request of Phillip Dielil, .then living, performed certain -services
There is no allegation that the plaintiff was employed by the defendants’ testator or that she rendered him any services. She alleges that for the services that she rendered to the defendants’ testator’s wife he promised and agreed to pay. He died on the 18th day of December, 1903,"something over, two years after plaintiff’s services terminated. The plaintiff was called as a witness and testified that prior to December 1, 1897, she had been employed as a domestic servant, receiving eighteen dollars per month; that about the 5th of December, 1897, she went to live with her aunt “ because I was broke down p” that this aunt was Margaret Diehl, the wife of the defendants’ testator; that while she was living with her aunt the aunt had á paralytic stroke and became perfectly helpless. At this'point it was conceded by defendants’ counsel “ that the plaintiff cared for the wife of the defendants’ testator, Margaret Diehl, from the 12th day of December, 1897, up to the 18th day of May, 1901, and that during that time she rendered such services as were required of her, more particularly by way of washing and dressing said Margaret Diehl; giving her her medicine, giving her massage treatments four hours per day, two in the morning and two at night, and electrical treatments; attending her generally, taking her out on "days when she could be taken out in a wheeled chair; accompanying her to the country and remaining-there, her constant attendant as she had been in the city; sleeping in the same room with the invalid during the night in order to be ready to render such services as the invalid might require during the night.” Whereupon the counsel for the plaintiff stated, “ we do not sue on any specific contract. * * * We claim that the services are reasonably Worth the amount charged in the bill that was served.”
There w'as introduced in evidence by defendants a letter written by the plaintiff to the defendants’ testator and his wife dated November 15, 19’01, informing them that she had been married on November third, and stating “ now I would like to ask for the twelve dol
^ Plaintiff’s brother testified that in December, 1897, he learned of his aunt’s'illness ; that he had a conversation at that time, with •the defendants’ testator with respect to the plaintiff remaining in his household; that he told his uncle, “ I don’t like - the idea of my sister coming here and staying with you, as she can get better wages when she works outside for strangers, and she will have more liberty ; and then I said, another thing, it might make bad friends in the family. . And my uncle says,- you don’t need to be afraid of-that, I want your sister. here; she is the., only person that suits me and attends to your afint; *. * * don’t be worried, I will provide for her in the will.” He; further testified that the last conversation he ' had with the defendants’ testator was shortly before his sister left his uncle; that his uncle, sister and aunt were present; that the defendants’ testator said that he did not want the plaintiff to go and leave the place. ■ Witness said, “ ‘ uncle look at. that girl,’ I says, ‘ look'how that girl looks ; ’ I says, that- girl is sick,’ I .said, ‘ I can’t see ' it, she must go. away,’ and he says to. me, ‘ John,’ he says, ‘ Marie is well provided for, let 'her stay here.’ I says, ‘no, she can’t,:she is sick.’ ” . • -.
A physician who attended the plaintiff’s aunt testified in answer to a hypothetical question, assuming that the plaintiff rendered the services specified, that the reasonable, value' of the services was at least twenty-five dollars per week; that was the usual compensation paid to trained nurses. Another witness testified that she. was the wife of a relative of the defendants’ testator;' that shq first met him in 1898; that after the plaintiff left his house she had a' conversation, with him with respect to the plaintiff’s leaving, and that he said: “ Marie ought not to have left; he would make everything al] fight with her if she only stay'ed,. that he would remember her in
There is no direct evidence of any promise, of the defendants’ te'stator to pay for the services that the plaintiff rendered, nor could a promise to pay be implied from the mere rendition of services of a greater amount 'than the person rendering the services received when it was rendered. The only statement that was made by the defendants’ testator and which tends to prove any promise was that made to the plaintiff’-s .brother that the defendants’ testator would provide for the plaintiff in his will. Just what that provision, was to be was not stated. It was a statement of a benefit that would accrue to the plaintiff if she remained in his service, and such a promise was too indefinite to be enforced. The other statement made to the plaintiff’s brother was at the time that the plaintiff terminated her service, and that was a promise to make provision for the plaintiff if the plaintiff remained with him. That, however, she refused to do. The other declarations of the defendants’ testator proved were simply statements of an intention to make testamentary, provisions in favor of the plaintiff and contained no promise. The testator did make a provision for the plaintiff in his will, but that provision was merely nominal and not satisfactory to her. By giving this evidence all the weight that could be given to it there is nothing more than a promise that if the plaintiff remained in the defendants’ testator’s employ he would provide for her in his will; that she refused to remain and left against his protest, and he failed to make a satisfactory provision for her. It is difficult to see how
The rule to be applied in determining actions of this character against the estate of a decedent has been many times stated by. the Court of Appeals, the latest expression being in the case of Rosseau v. Rouss (180 N. Y. 116), where it was said: “We have repeatedly held that such a .contract must not only be certain and definite, and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. We have been emphatic-in condemning these agreements, because they ‘ have become so frequent in recent years as to cause alarm.’ We have been, rigid and exacting as to the sufficiency of the evidence to establish them, and have condemned the proof thereof ‘ through parol evidence given by interested witnesses.’ As such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises,’ we have declared that they ‘ should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses,’ ”
It must be apparent that this evidence fails to comply with these conditions. There- is no direct -evidence of any promise to pay the plaintiff any sum of money. There is no implied promise to pay more than she had accepted as the proper compensation for her services, and in the letter she wrote tó the defendants’ testator before his death she stated the claim that she had against him, and that was for one month’s wages at the rate. of compensation she had before received. 'Ho other claim was made until after his death; no indication that she claimed that money was due her- other than thé amount she claimed for one -month’s wages-. This claim is evidently based upon her disappointment in not receiving a substantial legacy in his will, but I do not think that the evidence justifies a finding that there was any contract to make
It follows, therefore, that the judgment and order should be . reversed and a new trial ordered, with costs to the appellant to abide the event. ■ .
O’Brien, P. J., Patterson and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.