Scheu v. Blum

121 N.Y.S. 122 | N.Y. App. Div. | 1910

Dowling, J.:

• Plaintiff claims to have .rendered services to Nicholaus Bhiin. as. nurse and attendant from August 11, 1901, to January 6, 1905 (except from August 13, 1902,'to September. 3, 1902),, for which she sought to recover- the siun of $3,000, and also asks for the repayment of alleged loans made by her to'him amounting to $210. The latter claim, although endeavored to be substantiated by proof, was withdrawn by plaintiff at the close of the case. _ The former issue is that which was submitted to the jury and upon which a verdict was given in plaintiff’s favor for $900.

This case was before this court upon an appeal from a judgment previously obtained, and it was then held that a verdict in plaintiff’s favor must be reversed, not only because of errors committed at the trial, but because it was against the weight of evidence. (119 App. Div. 825.) The present record is free from the errors then found, but the other objection, that the verdict was against the weight of evidence, is still applicable to this recovery. The existence of the alleged contract of employment depends upon the testimony of the husband, for which there is no substantial corroboration.

The card purporting to be, dated August, 1901, which is claimed to have been seen by plaintiff’s husband about August 11, 1901, affords no corroboration of his testimony that an agreement for plaintiff’s services was made, as.testified to by him. JSTor does the card itself, assuming it to be genuinely dated, show anything more than a desire on the part of decedent to see plaintiff at his house. It is barren of any suggestion of a call for the services of a nurse or attendant. The courts have repeatedly called attention to the necessity for very satisfactory evidence in order to support verbal contracts of the kind here sued upon. Furthermore, plaintiff’s husband testified upon this trial that he and his wife “ kept house together” and that “ the money that she earned and learned” was kept together and used for the household expenses and personal expenses for both himself and his wife. And he further. testified : “ In other words, we had just one fund. What was mine was hers and what was hers was mine.” There can be no doubt that under this testimony plaintiff’s husband was a person interested in the event within the meaning of section 829 .of the Code of Civil Procedure, and the refusal to strike out his testimony on the ground that he was interested, and- that the Code provision referred to had been violated when a motion so to do was duly made at the close of his e.xamination, was. error. .

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham,- P. J., McLaughlin, Laughlin and Miller,- JJl, concurred. ■

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.