Weiss v. Bader

Per Curiam : This is an action by sister against the estate of her brother to recover for services as a nurse. The plaintiff elected at the trial to recover on quantum, meruit. The jury awarded her $500, which was reduced to $450 by the. Municipal Court justice presiding at the trial.- We'think that the evidence for the plaintiff was not sufficient to establish this value for services rendered. The justice in his charge to the jury very properly said that the testimony on this subject was “ slight — very slight.” It appears that the plaintiff, a [496] married woman, did go to live with her- brother and his family Avhen he was ailing from the diseases which finally resulted in his death, and that she did thereupon render services about the house and to him.. But it also appears that she had her keep and that of her child at his expense, -and that there were others, including nurses, who attended to the work about the house and to the care of'the ill man. She testifies that she received a present of $50 Avhicli she now elects to charge on account. Her claim as presented against the estate is for $3 a day. This taken with her keep is a liberal charge Avhen we consider the circumstances of these people, and the like services of others in the house. The plaintiff relied practically upon evidence that the decedent declared that he wished his sister to receive $500, but the indications are that he was then considering a provision for her in his will. The. declared intention of a testator with reference to his sister is not cogeht evidence of the-actual value of her services to him. While it is not entirely clear that any claim was established' by the ‘‘ very satisfactory evidence ” required in such cases (Matter of Milligan, 112 App. Div. 375, and cases cited), we aré not prepared to say that the case did not present a question for the jury. The judgment must be reversed' and a new trial ordered, costs to aifide the event. Jenks,-Hookes, GIaynob, Rich and Millee, JJ., concurred, Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide' the event.