Opinion
June 7, 1907.
Louis Wendel, Jr., for the appellant.
David Bernstein, for the respondent.
This action was brought to recover the sum of $3,000 for services as nurse, alleged to have been rendered to defendant's intestate, and the sum of $210, alleged to have been loaned to him. The alleged services covered a period from August 11, 1901, to September 10, 1904, at $2.50 a day for 1,013 days, and from September 10, 1904, to January 1, 1905, during his last illness (117 days), at $4 a day. The jury rendered a verdict in favor of the plaintiff for the full amount claimed, and from the judgment entered thereon and an order denying a motion for a new trial the defendant appeals.
I am of the opinion the judgment must be reversed, not only upon the ground that it is against the weight of evidence, but also because errors were committed at the trial.
The intestate was a silk dyer, owning certain premises in the city of New York upon which his business was conducted, and where he had one room in which he lived. Some twenty years before his death he boarded with the plaintiff and her husband for three or four years and from that time to the time of his death they were very intimate friends. Some time in December, 1904, by reason of a serious illness he was taken to the plaintiff's house, where he died about ten days later. To establish the claim for services, the plaintiff relied substantially upon the testimony of her husband, who testified, in substance, that in August, 1901, the decedent complained to him of being sick and asked if the plaintiff might come and take care of him; that he consented on condition that the decedent should pay her for her services, which he agreed to do; that the services were rendered by the plaintiff, and that he frequently asked the decedent for the money which was due his wife therefor, and that the decedent gave various reasons for not paying, but invariably promised to pay later on, which he neglected to do; that the plaintiff would start for the decedent's room about ten o'clock in the morning each day and return about five o'clock in the afternoon; and that he was at work all day during this time, and did not see his wife go or return. His testimony, therefore, as to the actual rendition of any service is of little or no value. There is, however, evidence to the effect that the plaintiff frequently went to the decedent's room, and at times was seen taking care of his rooms, cooking his meals, and dining with him; but during all this time the evidence clearly shows that the deceased was looking after his business, even doing some of the manual work himself, drawing all of his own checks, paying the workmen in his establishment and taking general supervision of it. There is no evidence which would justify a finding that during any of the time, except a few days immediately prior to the decedent's death, the plaintiff rendered any service as a nurse, or that the decedent needed a nurse. Indeed, the contrary appears. He not only looked after his business, but was frequently seen at restaurants, theatres and other public places of amusement. It is true there was evidence to the effect that he was seen much in plaintiff's company; that he frequently took her driving, and it is evident they appeared to enjoy each other's society. What the plaintiff's motive was in spending so much time with him is of no importance, but in view of the uncontradicted facts as to what the decedent did, it is apparent that his health was such as not to require the services of a nurse, and that she not only did not act as such, but did not consider herself employed as a nurse. The existence of the alleged contract of employment depends upon the testimony of her husband. There is no substantial corroboration. Contracts of this kind are looked upon with suspicion and whenever sought to be enforced are closely scrutinized and never sustained unless the evidence is very satisfactory. ( Roberge v. Bonner, 94 App. Div. 342; affd., 185 N.Y. 265; Walbaum v. Heaney, 104 App. Div. 412; Apollonio v. Langley, 106 id. 40; Shakespeare v. Markham, 72 N.Y. 400; Matter of Van Slooten v. Wheeler, 140 id. 624; Hamlin v. Stevens, 177 id. 39; Rosseau v. Rouss, 180 id. 116.)
As was said in Rosseau v. Rouss ( supra): "As `such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises,' we have declared that they `should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses.'"
The plaintiff's husband can hardly be said to have been a disinterested witness and if he were his evidence falls far short of establishing a contract which entitled the plaintiff to recover for services rendered as a nurse. And in this connection it is worthy of notice that the plaintiff claims, and has been allowed four dollars a day for 117 days for nursing the decedent in his last illness. The record shows that he was not taken to the plaintiff's house until ten days before his death and there is not a scintilla of evidence that any greater services were rendered before that time than had been at any time previous.
The evidence as to the alleged loan is equally unsatisfactory. This depends also upon the husband's testimony, the slightest consideration of which shows it to be unreliable. He testified that the decedent told him of the loans in August, 1904. The plaintiff's bill of particulars states that the loan was made in sums of eighty dollars, fifty dollars and eighty dollars on April 22, August 6 and October 8, 1904. Obviously the decedent could not have told him in August, 1904, of the loan which was made the following October, and yet the jury, upon his testimony alone, found that such loan was made.
But if it be held that there was sufficient evidence to go to the jury on the question of the employment and rendition of the services, the evidence was entirely insufficient to sustain a verdict on the value of the services rendered. The witness Sophie Jehner, a professional nurse, testified that she charged three dollars a day of twelve hours, and that the services rendered by the plaintiff were worth from two dollars to two dollars and fifty cents a day. The plaintiff was not a professional nurse, nor did she render any services as a nurse, nor was she employed for twelve hours a day. As to the services which the plaintiff actually rendered the witness admitted that she knew nothing of their value. Her evidence, therefore, to establish the value of the services, was incompetent and irrelevant, and should not have been admitted. ( Weidman v. Thompson, 53 App. Div. 22.)
The plaintiff was also allowed, against the objection of the defendant, to introduce evidence to the effect that the deceased was at one time a member of the Ancient Order of United Workmen, and that he had endeavored to make the plaintiff a beneficiary in the benefit certificate for $2,000, issued to him by that society. This evidence was clearly incompetent. The plaintiff's claim was based upon an alleged contract, and whether or not he had attempted to make her the beneficiary in the certificate tended neither to prove nor disprove the existence of such contract. His declarations were not a part of the res gestæ, for they were alleged to have been made two or three years prior to the decease of the intestate, and nearly two years after the alleged employment. The deceased was unmarried, he had no children, and it may well be that, in view of the friendly relations existing between him and the plaintiff, that he desired she should have the benefit of the certificate to the exclusion of collateral relatives. Whatever may have been his purpose it does not show or tend to show that it was to compensate the plaintiff for the services which she had rendered under the alleged contract, as testified to by her husband, and yet it was offered and received for this purpose. It was just the kind of evidence which might tend to prejudice a jury in favor of the plaintiff, and the court, in receiving it, erred. For the same reason the court erred in receiving evidence, against defendant's objection, to the effect that the deceased had said he was going to provide for the plaintiff in his will. If the decedent had made a contract to pay for the services of the plaintiff, it is highly improbable that he would have contemplated payment by provision in his will, and, whether he did or not, that is not the contract sued upon.
Finally, inasmuch as there must be a new trial, it may not be out of place to call attention to the fact that the plaintiff was not entitled to costs. Such costs were awarded without any certificate or finding of the trial judge showing the facts upon which the award was founded. The Code of Civil Procedure (§ 1835) forbids the allowance of costs in an action brought against an executor or administrator in his representative capacity, except as prescribed in section 1836, which permits such an award where it appears that the claim was duly presented; that its payment was unreasonably resisted or rejected; or that there was a refusal to refer. Since these facts depend in whole or in part, at least, upon circumstances outside of the litigation, and not within its issues, the latter section provides that the facts must be certified by the judge or referee before whom the trial was had. The award of costs, therefore, must depend upon the certificate. ( Matson v. Abbey, 141 N.Y. 179.)
The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
PATTERSON, P.J., INGRAHAM, CLARKE and LAMBERT, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.