12 N.Y.S. 391 | N.Y. Sup. Ct. | 1891
This action was brought to recover the value of services in taking care of and nursing the testatrix, and for boarding and furnishing her with supplies, from December 5, 1884, until her death, the 10th of January, 1889; and also for some services and expenditures before that time. The complaint alleges that there was an agreement made between the plaintiff and her husband, before any services were rendered or board furnished, that she should have whatever she earned as her sole and separate estate. The answer put in issue the plaintiff’s claim. The cause was referred. The referee reported in favor of the plaintiff, $2,631.05, for which judgment was entered, and the defendant appealed to this court. The testatrix was a widow of the age of about 77 years, leaving no descendants. She was the plaintiff’s aunt, and owned a house and lot in the village of Penn Tan, of the value of about $3,500, and left personal property to the amount of $1,000. For many years she had lived alone in a part of the house; sometimes renting the portion not occupied by her. The plaintiff and her husband lived with her about two years, commencing in 1880, and then moved away. Between April 7, 1883, and November 5, 1884, the plaintiff rendered certain services for the deceased, and also supplied her with some provisions. About the date last named the plaintiff claims that an agreement was made between them whereby she was to move back into the house, and board the testatrix for 25 cents a meal, and give her such care and attention as her condition required, in consideration of which she was to receive the dwelling-house or its value. The plaintiff claims that, in pursuance of this arrangement, she and her husband moved into the house of the deceased, who boarded with her until her death, and that she bestowed upon her much care and attention. The evidence on the part of the plaintiff tended to show that the testatrix was in feeble health, and needed much care and nursing, and that early in November, 1886, she became seriously ill, and was eared for' by the plaintiff, and such additional help as her- necessity required; that she partially recovered, but remained feeble until her death, which occurred on the 10th day of January, 1889. The plaintiff’s evidence tended further to show that her services were worth all she charged. The defendant’s evidence tended to show that the testatrix needed no attention. The leading controversy on the trial related to questions of fact.
In June, 1890, the referee made his report, in which he finds as follows: “First. That one Martha W. Douglass was a resident of the village of Penn Tan, N. Y., for many years, where she died, January 10, 1889, aged about 77 years, and leaving a last will and testament, which has been fully proved, and of which defendant is executor. That she was an unmarried person, without descendants, and owning a house and lot on Main street, in said village, worth $3,500.00; also personal property estimated worth $1,000.00. That she resided in said house during the last ten years of her life, and prior thereto, and was a feeble, woman, and more or less diseased, having asthma and cough, attended with expectoration, and needed the care and attention of others. That the plaintiff and her family resided with said Martha W. Douglass for the period of about two years, beginning some time in 1880. Second. That after the plaintiff and her family removed from said house, and during the time commencing April 7, 1883, the plaintiff, at decedent’s request, performed labor and service for said decedent one day in each week, until November 5,1884, and also furnished her supplies for her table. That said services were worth $94.00, and said supplies $3.55. Third. That on
It will be noticed from this report that between April 7,1883. and the 5th day •of November, 1884, the plaintiff furnished the deceased supplies of the value ■of $3.55, and rendered services worth $94; that from the last date until the 8th day of December, 3886, the plaintiff’s nursing and services were worth $168.25, and from that time until her death, $1,220; that the board of the testatrix from the 5th day of November, 1884, until her death, at the rate of 25 •cents per meal, was $1,145.25,—amounting in the aggregate to $2,631.05, for which judgment was ordered and entered. The learned counsel for the appellant comes here with two contentions: One that the referee’s report was not warranted by the evidence, claiming that the plaintiff’s husband was thoroughly impeached; also that, by his own showing, his testimony was false •and unworthy of credit. The other, that the referee fell into errors in the admission and rejection of evidence. The evidence of the plaintiff’s husband, •appearing in the appeal papers, is certainly not satisfactory. Aside from the •suspicion cast upon. his testimony by impeaching witnesses, and seemingly Inconsistent statements, an inspection of the book, Exhibit A, put in evidence ¡by the defendant, shows with reasonable certainty that all the entries were