Heyne v. Doerfler

Barnard, P. J. The plaintiff presented a claim against the estate of Maria F. Arlt, deceased. The claim was composed of two items, one arising out of a special contract to furnish board to two nieces of testatrix, and the remainder of the claim was for personal service as nurse rendered by plaintiff for deceased at various dates between June, 1887, and March, 1888, when she died. The claims were fully proven so far as the same were allowed by the judgment. As to the $200 claim, it was proven by the witness Stenity that the deceased shortly before her death stated to the plaintiff that she would pay the $200 “ that I promised to you for the board of Anna and Emil. ” The deceased was proven to have stated to the witness Fillsey that she would give the plaintiff $200 to take away from her two parties who had come from Germany. The deceased made substantially the same statement to Mrs. Heyne. As to the remainder of the claim, the deceased is proven to have said to her physician that the plaintiff was attending her as a professional nurse, and she would pay him all he lost, “and the same ¡is any professional nurse.” The deceased is proven to have told the plaintiff’s wife that “she would pay for the service as nurse whatever plaintiff lost, and more than that. ” The plaintiff was a journeyman cigar-maker, and earned at his business $15 a week. The question put to the plaintiff, whether he had had a conversation with deceased about Emil and Anna Jones coming to his house before they came, was not improper. The answer proved nothing more than that there was a conversation. This was held to be on the verge of offense original, (section 829 of the Code,) but was not sufficient to reverse a judgment in favor of a plaintiff. Hier v. Grant, 47 N. Y. 278. The mere conversation would be improper when that was the material fact to be proved. Maverick v. Marvel, 90 N. Y. 656. The conversation was subsequently proven by the defendant. Anna Jones testified to a conversation with deceased favorable to the defendant. The plaintiff then testified as to his version of the conversation favorable to himself. The conversation was on a Sunday afternoon, and was overheard by Mrs. Jones in the yard. The plaintiff was upstairs with the deceased. There is no claim that there was more than one conversation between the plaintiff and deceased on the subject. There are no other exceptions which call for a reversal of the judgment. Judgment affirmed, with costs. All concur.