Opinion
May Term, 1902.
Judgment reversed and new trial ordered before another referee, with costs to the appellant to abide event.
The claimant's brother, who was the husband of the deceased, died in February, 1894. At the time of his death he was carrying on a small grocery store in the city of Dunkirk, which was taken charge of by his widow after the death of her husband. The claimant was then about seventy years of age, totally blind and penniless, and in fact was supported in part by the poor department of the city. He apparently made the store of deceased his stopping place and was quite willing to assist his sister-in-law in carrying on the store, doing this voluntarily and presenting no account for his services. He testified that during the six years he pretends to have been working for the decedent she never paid him a cent to apply on his alleged account and he never presented any formal statement to her. The evidence shows that at times she let him have articles of small value from the store without charge, and the relations of these parties impress us quite strongly with the belief that there was no expectation that any charge for these irregularly performed services was to be made. Claims of this character, arising after the death of a person and with the relations existing which appear in this case, must be examined and scrutinized with great caution. ( Kearney v. McKeon, 85 N.Y. 136; Matter of Marcellus, 165 id. 70, 78; Street v. Ransom, 62 App. Div. 519. ) The claim in this case depends very largely upon the testimony of the claimant himself. He testified in detail to the services which he rendered, their value, and also narrated important conversations had with the decedent. This testimony was incompetent. ( Heyne v. Doerfler, 124 N.Y. 505.) Eliminating this evidence there is left but little upon which any recovery may be supported and it should be established by competent and convincing proof. ( Yates v. Root, 4 App. Div. 439) The judgment should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event. Adams, P.J., McLennan, Williams and Hiscock, JJ., concurred.