137 N.Y.S. 1105 | N.Y. App. Div. | 1912
Plaintiff, by occupation a motorman upon a street railway, has recovered a judgment upon a verdict in the sum of $2,000 for services claimed to have been rendered to one Patrick Dunn in shaving him, trimming his hair, manicuring, massaging and bathing him during a period beginning October 1, 1899, and. ending June 15, 1907. Dunn was a man of advanced years and in feeble health. The services claimed to have been rendered were testified to by witnesses, many of whom were related to plaintiff’s wife. Their testimony was in conflict with that offered on behalf of defendants, consisting among others of the barber who shaved Dunn twice a week and cut his hair monthly, from 1900 to 1907, covering nearly all of the time in
There were errors committed upon the trial sufficient to justify a reversal of the judgment herein, such as the receipt in evidence of the letter signed by the Eev. O. J. Crowley and the refusal to charge as requested in defendants’ first, second and third requests. But in the view which we take of "this case the discussion of these errors is unnecessary. We believe the complaint herein should have been dismissed at the close of the plaintiff’s case, for he had failed entirely to establish any express promise by decedent to pay for any services to be rendered by plaintiff, nor were any facts shown from which a promise could be reasonably inferred. The plaintiff was not in business as a barber or manicure, nor was he customarily engaged in the performance of duties as such. His practice was limited to Dunn. Such slight services as the jury might have been warranted in finding he had performed were rendered infrequently, at long intervals, and of a nature such as might well proceed from disinterested friendship or expectancy of testamentary remembrance, rather than from either the hope or promise of payment. No demand was ever made upon Dunn for any payment during his lifetime, nor was any intimation ever given him that a claim was growing up against him, based on the rendition of these alleged services. He never made a payment of any kind on account thereof. Claims of this nature, first presented after a decedent’s death, resting on the oral evidence of witnesses related by blood or marriage to the claimant, without written evidence to support or corroborate them, and fortified by no admission of the decedent as to his liability thereon, cannot be deemed meritorious, except upon a larger measure of proof than this record affords.
The judgment and order appealed from will, therefore, be reversed and a new trial ordered, with costs to appellants to abide the event.
. Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.
