App. Div. 725] Third Department, July, 1921. not able to discover any more intention in the grantor to withhold, in these conveyances, his interest in the land covered by this street, than would be if the public authority had already laid out the street, and the grantor still held the fee subject to the easement. As between these parties, grantor and grantees, it is a public street to all intents and purposes, except that the public authorities are not bound to keep it in repair." It was there considered that the acceptance by the public of the dedication was not necessary to carry the grant to the center of the street, for the reason that as to the parties it was a street. The judgment and order should, therefore, be affirmed, with costs. Judgment and order unanimously affirmed, with costs. JENNIE SMITH, Respondent, v. ANNITA M. BURHYTE and GEORGE D. ALDERMAN, Administrators, etc., of WILLIAM L. PALMER, Deceased, Appellants. Third Department, July 7, 1921. Executors and administrators action by married woman to recover for services rendered to decedent evidence not showing that decedent contracted for services – plaintiff not carrying on separate business under Domestic Relations Law, § 51 — husband of claimant not competent witness rule as to sufficiency of evidence stated. In an action against an administrator to recover for services and personal care of the decedent during a period of about five years, it appeared that the decedent was a man of about eighty years of age, without relatives, that the plaintiff and her husband resided on his farm in a house separate and apart from the decedent and that she performed many neighborly acts of kindness for the decedent and furnished him with food from time to time, but that as to the food and services rendered the decedent gave the plaintiff's husband credit. Held, on all the evidence, that the judgment for $1,100 was grossly excessive; That the husband of the plaintiff was incompetent to give a lump sum value of the plaintiff's services, or if competent, that the evidence shows that his testimony upon that subject was substantially worthless, and that the services were grossly exaggerated. Third Department, July, 1921. [Vol. 197 Prima facie, if any obligation was incurred by the decedent, it was to the husband of the plaintiff who was a tenant on decedent's land and not to the wife, and said arrangement did not furnish an independent basis for a recovery by the wife, who was not carrying on any separate business or occupation within the meaning of section 51 of the Domestic Relations Law. Plaintiff's husband was incompetent to give testimony as to transactions Iwith the decedent. In cases of this character liability should be made out by clear and convincing testimony and the trier of fact has the right to insist that the justice and reasonableness of the claim shall be established by the most satisfactory evidence; the testimony in this case does not come up to the requirements which should control the conscience of the court in determining whether the evidence warrants a recovery. COCHRANE and KILEY, JJ., dissent. APPEAL by the defendants, Annita M. Burhyte and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 25th day of May, 1920, on the verdict of a jury, and also from an order entered in said clerk's office on the 1st day of June, 1920, denying defendants' motion to set aside the verdict and for a new trial made upon the minutes. Carlos J. Coleman [Clarence R. Runals and Paul P. Cohen with him on the brief], for the appellants. William L. Burke, for the respondent. JOHN M. KELLOGG, P. J.: 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 App. Div. 725] Third Department, July, 1921. for a man of his age. The plaintiff's husband said that he occasionally had a give out spell," but for the last year had been better than before, and no give out spell" is mentioned during that time. He was a miser, and left no debts at the time of his death unless he owed the plaintiff, her husband and her son, each of whom has brought an action against the estate. He was quite a methodical man, kept a diary of all current events and a book of accounts with any one with whom he dealt. There is at least a question if the plaintiff did not, after his death, obtain the account books and keep them. Plaintiff asked permission to keep the diaries, which she had taken possession of, as a memento, and assent was given without examination. She claims that but one book was taken; other evidence indicates there were several. The house was very small; she describes it as follows: "The walls had not been papered in a long time; in fact they were dirty. Mr. Palmer had grown old and he was careless in his habits and he was indifferent to the surroundings of his home and his bedroom had never been papered. I do not know whether it ever had been whitewashed or not. * * * The sheet he had on his bed at the time he died was the covering to an old mattress Mr. Munson's folks had thrown away and tried to burn up. He had rescued the mattress from the flames and had taken it home, and had taken the stuffing out of the mattress. He had washed, in the creek, the covering and put it on his bed. During his last sickness I tried to get him to put on some clean sheets." He kept a cat, and a box full of sawdust was in the house for the use of the cat and in which he expectorated. He never had a doctor. He cooked his own meals, did his own work except as far as plaintiff claims to have assisted him and as other benevolent neighbors sent in provisions for him. 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 Third Department, July, 1921. [Vol. 197 the decedent, had sent him provisions, and that his wife and he had assisted him in various ways, but without any expecta tion of compensation; they were simply acts of good neighborship. He says that after the sister's death plaintiff carried in his breakfast that morning; that he was crying and talking about his sister and that he said: "Eva is gone now, I am all alone, you will have to look after me." This was at least a queer remark, as the sister had not lived with him or assisted him and he was in his usual health. The plaintiff's entire claim rests, in substance, upon that alleged conversation. Plaintiff and her husband claim it was a hiring of both of them to take care of him and furnish him things. There is no evidence of any change thereafter in his dress, manner of living or the dirty, filthy condition of his house and surroundings. At times he slept on a bunk in the barn. The husband was asked why he did not present his bill to the living man; he answered, " we were to have the pay when he was ready to give it to us; he promised us-[counsel interrupted]. Q. I did not ask you what he promised you. I asked you why you did not present the bill?" The witness did not answer the question. The plaintiff all the while was a married woman, living with her husband, the chief witness, and her son. They lived on a farm, their house being about forty rods from the decedent's house. There were some other neighbors within about an equal distance. The alleged services were of a most trivial nature, when we understand the manner in which the man lived. The principal claim is that frequently the wife carried down to his house a chicken dinner, or some bread, or things which she had cooked at her house, and sometimes carried him things which she cooked at his place. She also carried him milk which the husband sold to him; that she wrote letters for him, although only one person is mentioned to whom a letter was written, and one letter at that; that she drove him to the mill to get a grist ground; that his mail came in their mail box, and the wife or some other member of the family carried it down. Presumably the old miser did not have a very heavy mail. At one time he went to a store kept by a relative of the plaintiff, and in which she at times clerked, and he asked her judgment about a mackintosh and she helped him select one; App. Div. 725] Third Department, July, 1921. that she bought swamp root for him at the store of the relative, and pills and other things, and that she did mending for him. The husband is only able to swear about darning a sweater and sewing an outside pocket on the mackintosh; a neighbor swears that his wife sewed on this pocket. The husband conceded that the old man did a great part of his own mending and that the wife did not do as much for the last year or two. Perhaps this evidence is explained by the fact that the wardrobe was in court, and the husband was asked to examine the stockings and garments and point out anything the wife mended, but was unable to do so, and when a mended sock or article was found he said it was mended by the deceased himself. For sometime prior to his death it is very clear that he did his own mending and darning. The mother of the plaintiff was at her house for a time, and said that she went down during that time with plaintiff to the decedent's house; that she went down because the plaintiff was afraid she would find the old man dead; that she would go to the door, the plaintiff would go in and she would wait until the plaintiff came out and then they would go home. It is said she built the fires for him; the mother swears to plaintiff's building a fire once. There is no doubt but the plaintiff and his wife were kind to the old man, but it is improbable that this old man ever agreed to or expected to pay them, or that they ever expected he would. The services were just the little ordinary services that kind-hearted neighbors would do for an old man. The husband says the decedent had a good broom, but to save it he would always use the old broom, which was of but little value, and that his wife swept for him and made his bed for him at times, and helped him put on his coat and button it when it was cold and his fingers were stiff, and states an occasion of this kind. At another time he says the old man came from the hill, where he had been at work and was caught in a storm, and that she helped to take off his rubber boots and put on some dry stockings. It is unreasonable to suppose that she assisted him to bed, or that she helped dress him, or did any particular amount of sweeping for him. There was no reason why she should; he was well and was running his little place in his own way. She wanted to paper the house but he would not consent. |