197 A.D. 725 | N.Y. App. Div. | 1921
The plaintiff has recovered a judgment for $1,100 for her services and personal care of the decedent from March 11, 1914, to October 6, 1919, the day of his death. At the time of his death he was about eighty years of age, unmarried, and had no relatives nearer than a niece. A sister, who had resided about ten miles from him, died March 10, 1914. It does not appear that she was ever a member of his household or rendered him any assistance. He had a little farm, leased to plaintiff’s husband, and a house and about two acres of land where he lived. He lived alone and worked the two acres and a half of land, with some assistance from others, raising some potatoes, a little corn and apparently some hay. He died at the barn while he was husking corn. He was around attending to his duties, and in apparently good health
The plaintiff relied upon her husband as the chief witness to prove her case. He was not a fair witness, but sought every opportunity to crowd into the case something which the court had excluded. The court remonstrated with him from time to time and told him he was hurting his wife’s case, but finally announced that he would let the witness take his own course, which the witness did. The husband claims that prior to the sister’s death they had been good neighbors to
Upon the merits, if the husband were a competent witness, we arrive at the result (1) that the judgment is grossly excessive; (2) that the husband was incompetent to give a lump-sum value of the plaintiff’s services, or if competent, that
It being conceded that the services prior to the sister’s death were gratuitous, it was necessary for the plaintiff to prove a contract, or the basis of a contract, in order to recover. The death of the sister was not an important event as affecting his manner of living, for as we have seen she did not enter into his domestic arrangements. It is seized upon to indicate a change in his method of living and as the basis for the alleged agreement. It is entirely an artificial basis. The alleged statement to the husband and wife, “ I am all alone, you will have to look after me,” to neighbors who had always gratuitously helped him, is not a hiring or an agreement to pay. If it were, it is not an agreement to pay the wife, but an agreement with the head of the family. The provisions used by the deceased at the plaintiff’s house, the provisions carried by her to the house to him, were concededly the husband’s provisions and cooked by his wife as a part of her duties in the household. The milk and provisions which were carried were concededly sold by the husband, the owner, and either paid for to him or is in his account which he is making against the estate. The plaintiff all the while was caring for her little family, her husband and son and herself, and was assisting in running their farm. Throughout the husband’s evidence he speaks of it as “ we are to have
Objection was made that the husband was incompetent to give testimony as to a transaction with the deceased. I think that objection should have been sustained and that a great part of the evidence was erroneously received. The agreement of employment, if made, was the husband’s agreement, and for his benefit. The wife was not carrying on any separate business or occupation under section 51 of the Domestic Relations Law, but was a party to the conversation or agreement only as wife. (Hopkins v. Clark, 90 Hun, 4; Birkbeck v. Ackroyd, 74 N. Y. 356; Johnson v. Tait, 97 Misc. Rep. 48; Gorman v. N. Y., Chicago & St. Louis R. R. Co., 128 App. Div. 414; Stevens v. Cunningham, 181 N. Y. 454 and cases cited at p. 458; Holcomb v. Harris, 166 id. 257.) We quote from Holcomb v. Harris (p. 261): “ There is no provision in the act of 1884
Under the circumstances, the presumption is strong that the arrangement, if any, was made with the husband as husband, and does not furnish an independent basis for a recovery by the wife. Concededly the husband was a tenant of the farm; he used the barn and had some hay. There was an account with him, and the dealings between him and the
As we have seen, the husband, although pressed, could give no satisfactory reason why the account was not presented to the decedent in his lifetime. The case rests under a certain suspicion; liability should be made out by clear and convincing testimony. It is easy to prove a claim where the other party is silenced by death. The trier has the right to insist that the justice and reasonableness of the claim shall be established by the most satisfactory evidence. The rule is well understood, and it is only necessary to refer to a few of the many cases upon that subject. (Matter of Hart v. Tuite, 75 App. Div. 323; Walbaum v. Heaney, 104 id. 412; Rosseau v. Rouss, 180 N. Y. 116, 121; O’Brien v. Foley, 150 App. Div. 257, 258; Apthorp v. Thurston, 153 id. 572, 576; McKeon v. Van Slyck, 223 N. Y. 392.) The case of Kane v. Smith (109 App. Div. 163) is quite similar to this, and is very instructive. The testimony in this case does not come up to the requirements which should control the conscience of a court in determining whether the evidence warrants a recovery.
The judgment should, therefore, be reversed upon the law and the facts, and as excessive, and a new trial granted, with costs to the appellant to abide the event.
All concur, except Cochrane and Kiley, JJ., dissenting.
Judgment and order reversed upon the law and facts and new trial granted, with costs to appellant to abide event. The court disapproves of the finding that the plaintiff rendered valuable services at the request of the decedent; that the decedent agreed to pay her for any services rendered; that the value of the services rendered by the plaintiff to the decedent was $1,100,
See Laws of 1884, chap. 381. Amd. by Laws of 1892, chap. 594; Dom. Rel. Law (Gen. Laws, chap. 48; Laws of 1896, chap. 272), § 21; Dom. Rel. Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19), § 51.—[Rep.