Opinion
April Term, 1896.
J.B. Rafter, for the appellant.
W.H. Van Steenburgh, for the respondent.
Upon a careful examination of the evidence no definite proof is found of the exact number of days of service rendered by Lowell for the deceased. The only definite evidence as to the labor performed by Lowell is found in the testimony of Wainman, the carpenter, who was engaged in repairing the deceased's building. He testified that he, the carpenter, commenced work for the deceased about the middle of October, 1892, and worked there until about March 25, 1893, less some seven days; and he testifies, viz.: "I do not think there was a day during the whole time I was there, but what Mr. Lowell was there. He was always working around at something." The period of time covered by this witness does not exceed 138 secular days. This witness was allowed to testify that Lowell's services during that time were worth "$2.00 a day, he boarding himself."
After some other evidence given as to the services rendered by Lowell for the deceased in doing chores and giving further and other attention to the business and affairs of the deceased, the plaintiff called Lowell as a witness, and thereupon several letters of the deceased written to Lowell were produced and read in evidence. In the letters the deceased mentioned the services and attentions that had been received from Lowell. Thereupon the following question was propounded to the witness Lowell: "What was the fair reasonable value per day of the services so performed by you, as appears by the evidence herein for H.G. Root?" This question was objected to "as improper, incompetent and inadmissible. Second. Improper and inadmissible under section No. 829 of the Code of Civil Procedure, and tends to prove services by the witness for deceased, and to prove personal transactions between this witness and the deceased. Third. No foundation has been laid by showing this witness to have knowledge of all the evidence herein." The objections were overruled and an exception taken and the witness was allowed to answer, "The value is $2.00 per day." From the course of the evidence it appears that Lowell was present with Root a portion of the time when rendering some of the services embraced in the question. As to such services the question called for a personal transaction and was improper. ( Holcomb v. Holcomb, 95 N.Y. 316; Fisher v. Verplanck, 17 Hun, 150.)
In Taylor v. Welsh (92 Hun, 272) it was held that it was not proper to allow a plaintiff to testify that he did chores, errands, etc., for the deceased, and that the admission of such evidence was harmful error which required a new trial to be ordered. (See, also, Heyne v. Doerfler, 124 N.Y. 508.)
The question propounded was improper in another respect. It called for the opinion of the witness as to the value of the services performed by him "as appears by the evidence herein." It was not made clear that he knew and understood accurately all the evidence that had been given.
In Reynolds v. Robinson ( 64 N.Y. 589) a similar question was condemned, and in that case it was said: "It is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, * * * and thus form and express an opinion." The doctrine of that case has been asserted in numerous other cases. ( Guiterman v. Liverpool S. Co., 83 N.Y. 358; Hagadorn v. Conn. M.L. Ins. Co., 22 Hun, 249.) We ought not to disregard the error in receiving an answer to the question propounded, as it does not clearly appear that no injury resulted from the error. ( Brague v. Lord, 67 N.Y. 499; Taylor v. Welsh, 92 Hun, 272.)
The referee in his report says that the services rendered "as manager, general overseer, his skill, experience and good judgment, were worth to the said H. George Root the said sum of $2.00 per day." Instead of finding the actual value of the services the referee seems to have adopted an erroneous rule in measuring the value of the services of the witness. The rule for estimating the services should have been their actual value, and not such value as the services may have been supposed "to be worth * * * to the defendant in the particular circumstances in which he was placed." ( Perrine v. Hotchkiss, 58 Barb. 77.)
This is a case which, according to numerous authorities, we should scrutinize, and the claim should be established by satisfactory evidence relating to the extent of the services and the value thereof. ( Kearney v. McKeon, 85 N.Y. 139; Rowland v. Howard, 75 Hun, 1; Forbes v. Chichester, 30 N.Y. St. Repr. 370; Matter of Van Slooten v. Wheeler, 140 N.Y. 624.) In the latter case it was said: "The courts should see to it that such estates are fairly protected against unfounded and rapacious raids." (See, also, Dorman, as Administrator, v. Gannon, post, p. 458.)
The foregoing views lead to a reversal of the judgment.
All concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.