Hartig v. Hartig

Woodward, J.: The plaintiff, an infant, brings this action against his father, as executor of the estate of John C. Von Glahn, deceased, to recover the value of alleged services rendered to the deceased during his last illness. The plaintiff appeared as a witness in his own behalf, and was permitted, over the objection and exception of defendant, to testify to his services for the decedent in substantially the same manner that was condemned in the case of Taylor v. Welsh (92 Hun, 272), and with this testimony in the case the learned court has foimd in favor of the plaintiff, giving him judgment in the sum of $252. In an opinion handed down by the court it is stated that he disregarded the evidence of the plaintiff, and that outside of this testimony he finds evidence to support the claim, but this does not cure the error. The objection was seasonably and persistently raised, by the defendant, and the evidence was admitted, and a subsequent witness, testified to the value of the services based in a measure upon the testimony of the plaintiff as to what he had done. This was a case coming within the requirement that “ The courts should see to it that such estates are fairly protected against, unfounded and rapacious raids” (Matter of Van Slooten v. Wheeler, 140 N. Y. 624. See, also, Yates v. Root, 4 App. Div. 439,. 443, and authorities there cited), and because incompetent testimony was received, contrary to the provisions of section 829 of the Code of Civil Procedure, the judgment should, not be permitted,to stand., We cannot, know [8] what influence this testimony had in determining the case, and being forbidden by statute, it must be presumed to have prejudiced the rights of the defendant. The judgment should be reversed and a new trial ordered, costs to abide the event. Jenks, P. J., Burr, Thomas and Carr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to-abide the event.