126 N.Y.S. 994 | N.Y. App. Div. | 1911
The defendant’s intestate, Frank S. Smith, was superintendent of Ross Park in the city of Binghamton. He lived within the park and kept there for his own use cows, pigs and chickens, and the same seem to have been fed and cared for partly, at least, in connection with animals maintained within the park by the city. He died intestate September 20, 1907, leaving as his only next of kin one son, the defendant herein. His estate consisted of less than $2,000. Plaintiff worked in .the park for the city under the directions of Smith as superintendent. After the death of the latter he presented a claim against his estate for services in taking care of the cows, chickens and pigs of Smith night and morning from May 30, 1899, to October 15, 1901, a period of 280 weeks, at $2 per week, amounting to $560. On the trial it wras conceded that no services had been performed prior to May 30, 1900, ánd the claim of ’the plaintiff after that date was allowed in full by the referee, except that he deducted $102.31 for merchandise sold and delivered by Smith to the plaintiff at various times during the rendition of the services. Plaintiff’s service for the city was performed between eight o’clock in the forenoon and five o’clock in the afternoon, and he claims that the services in question were rendered for Smith before and after the hours mentioned during all of the time from May 30, 1900, to October 15, 1901.
Plaintiff testified in his own behalf, and this judgment- rests largely on his own testimony. He described in detail the nature and extent of liis services. This evidence was received over the objection that it was inadmissible under section 829 of the Code of Civil Procedure. It is a grave question whether this objection should not have been sustained, but the defendant on this appeal seems to concede the propriety of the ruling.
I am of the opinion however, that this claim has not been established with such clear and convincing evidence as is required in ■ this class of cases. It is true several witnesses testified to admissions of Smith that he intended to pay plaintiff for his services. Those admissions, however, may well have related to the fact that plaintiff was receiving from him merchandise from time to time. Assuming that the admissions were made as claimed, they are entirely consistent with the idea that plaintiff was being
The judgment should be reversed on the law and facts, the referee discharged, and a new trial-granted, with costs to the appellant to abide the event.
All concurred. ,
Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event.