
    Alfred Cooper, Respondent, v. Brooklyn Trust Company, as Executor, etc., of Mary F. Raymond, Deceased, Appellant.
    Second Department,
    November, 1905.
    Services rendered decedent — burden on servant to prove contract to pay for, and value of extra services.
    A courier, suing' an estate for extra services, alleged to have been rendered to the decedent while in her employ, must show that the acts of kindness to decedent for which he claims extra compensation were performed pursuant to a contract by her to pay therefor, as the presumption is that they were rendered under the contract of employment’. He cannot recover on proof of a mere voluntary promise of decedent to reward past kindnesses which he kept constantly before her mind in order to stimulate her generosity.
    Such action fails through lack of proof of the value of said services, when the only evidence thereof is the fact that the decedent left bonds valued at $9,000 in her safe deposit box with a memorandum that they were to be delivered to the plaintiff, which memorandum was subsequently destroyed by the decedent, with a statement that the plaintiff had been well paid.
    Appeal by the defendant, the Brooklyn Trust Company; as executor, etc., of Mary F. Raymond, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of December, 1903, upon the verdict of a jury, and. also from an order entered in said clerk’s office on the 4th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Willim N. Dykman, for the appellant.
    
      Thomas Kelby [ James W. Ridgway and Frederick L. Taylor with him on the brief], for the respondent.
   Miller, J.:

On a former appeal a judgment entered on a nonsuit granted at the close of the plaintiff’s case was reversed. (Cooper v. Brooklyn Trust Co., 87 App. Div. 610.) The defendant now appeals from a judgment entered on a verdict. The plaintiff seeks to recover upon an alleged contract made by the defendant’s testatrix to pay for extra services which he claims-were rendered during the time of his regular employment by her as a courier at- an annual salary.

Upon the part of the plaintiff it appeared-that the deceased was in the habit of traveling in Europe; that some time in 1894 he was in her .service as a courier for about seven months, having' been engaged to her by “ Cooks,” with whom he was regularly employed ; that in August, 1894, he left the employment of “ Cooks'” and engaged directly with her as a courier, in which capacity he served, a period of thirteen months until September, 1895, and that he was likewise employed on' two subsequent trips, one from ¡November, 1895, to'April, 1896,. and the last from May 12, 1896, to February 25, 1897, at which time ¿he died at Genoa. There, is no evidence to show specifically the nature of a courier’s duties, biit it appears by the plaintiff’s witness that upon the first trip, while he was still in the employ of “' Cooks,” he bought the' tickets,, paid the hotel. bills, “ and did all the services that were"necessary, got the cabs.” This witness also testified, speaking of the second trip, “ I have heard Conversation betwéeñ him and Mrs. ¡Raymond as to compensation that he was to receive; He always asked her what compensation she would make him, and she always said she would provide for him, * * He was with us constantly during that-trip,, and he'bought the railroad, tickets, attended to the transportation, paid the hotel bills, looked after the carriages, and did all that work for us. * * *' She was in delicate health, and ¡Mr, Cooper would go for the doctors and do everything he could, and attend to the medicines. He rendered services at night,.for her. If it were necessary he .went for the doctor at night and got her medicine, and. got up and waited on. her twhen it was necessary. He took entire, charge of her money matters and paid her bills. * * * He said he would lose his position, and she said she was able to pay him if he did lose it, and that she was also willing.' She did.say to him,' ‘I am able to remunerate you.’ That was always what she- said. ‘ I am well able to. pay you for any loss you may sustain by being with m¿.’ ” She also testified to a conversation with the deceased in October, 1895, as follows“ Mrs. ¡Raymond said she was over to the Safe Deposit Company in > Brooklyn a couple of days before, and that she .deposited bonds for Cooper to be given to- him after her death: She also said that he was always asking her about them, and of course she had to keep her promise.” ' It also appeared upon the plaintiff’s showing that upon the death of ■ said testatrix her •executor found in a box of the safe deposit company an envelope containing bonds of the par value of $6,000, and that on the face of the envelope the following was written in the handwriting of the deceased:

“ To be delivered to Alfred Cooper of Thomas Cook and Sons, of Paris. October 7th, 1895.
“Brooklyn Trust Company.
“ To be delivered to owner as per memorandum within. This is private, and for those addressed.
“M. F. RAYMOND.”

Upon a record containing substantially the same evidence as above outlined this court held that there was evidence of the rendition of services by the plaintiff outside- of his duties as courier, and of a promise by the testatrix to pay therefor, and that the deposit of the bonds was some evidence in the nature of an admission of the value of the services. This decision, so far as the record now before us presents the same question, should be respected; however, upon the trial now being reviwed, the plaintiff’s witness, by whom the contract and the performance of the services were sought to be established, was cross-examined and a defense was interposed, and we, therefore, must examine the entire' record to ascertain whether upon the whole case there is sufficient evidence to sustain the verdict, being concluded by the former decision only upon the point that the plaintiff’s evidence standing alone and unexplained presented a question for the jury. ■

On cross-examination the plaintiff’s witness testified: “ Mrs. Raymond spoke no foreign language, neither German nor Spanish. She said he was continually reminding her of'her promise. I testified at the last trial that he was. álways telling her how much he -had done for her. I very, very often heard him tell her that he was doing a lot for her. I could not repeat the number of times. No, he was not continually nagging her. He would say he was doing .a great deal and he was a very good friend to her, and she used to say, Yes, old boy, I know that, and I will reward you.’ He told her he had lost his place. I heard him say that — about three times, I should think. * * * The second trip began in August, 1894, and ended in September, 1895, and it was. during the second trip that I heard him remind her- that he was doing a lot for lief. I cannot just remember when he first told her that he had lost his position, and that he was doing a lot for her. I could not.remember whether it was August, 1894, or September. - * * I often heard him say himself that he had left Cook’s to come to her. I could not tell yon when, but I heard it. I heard- it on three or four occasions. We. spoke generally about it. * * ■* Between November, 1895, and April, 1896, I heard Cooper again remind her of how much lie. liad done. He would remind her in a general way, and say, Mary, I have done a great deal for you,’ or something like that. I did not ever see her pay him between November, 1895, and April, 1896..- I never saw her pay him. I saw her giving him money to pay bills, and I saw him - drawing money put of the bank to pay bills, but I never saw her paying him money. I don’t know that he was ever paid wages. He may have got the money; I know that lie . got money, but I could not say that he ever got wages. I might have said to-day that I supposed he might have made $7,000 during the European, trip.”- It also appeared on the part of the defense that the box, in which the-envelope containing the bonds was found, was rented- by the deceased; that in November, Í895, a month after placing it in the box, she broke the séal, took out and destroyed the memorandum referred to by the writing on the face of the envelope, and took out three. $1,000 bonds, winch she pledged as security for a loan, and that she said at the time, “ Wliat a foól I would be to Want money With these bonds here.- He” (referring to the plain.tiff) “has been well paid.” ,It also appeared without dispute that the plaintiff’s salary was $800 per year, that after . the death of the decedent he wrote a letter to the American consul' at Genoa-containing this, statement, viz.: “It was a usual thing'for\ the past-five'years that I have traveled as'courier for Madam while she remained in Europe at the end of our trips or'as she was leaving for home she paid me in full for services rendered since trip began. In -this case Mrs. Raymond- was taken ill so.suddenly, I mean her death sickness, that my salary from May 12th, 1896, until Febr: 25, 1897, remains unpaid and I herewith render my account,” and that he obtained through said consul payment in full of the account so rendered and executed a-receipt in full-for all services rendered as courier, and thereafter wrote a letter to the defendant containing the following statement: I have reasdn to believe that my name has been mentioned in her last will, as Mrs. Raymond has always shown to me great kindness, and had ¡promised to remember me in her generosity for the good cares I used to take for her comfort.” Thereafter the plaintiff brought an action to recover the six bonds remaining in the envelope referred to on the theory of a gift causa mortis, and failing in said action, this suit was brought for extra services on.the theory that the deposit of the bonds was an admission of the value of the services. There is this difference between the plaintiff’s evidence concerning the depositing of the bonds on this and the first trial; on the first trial his witness testified that the deceased said “ she had been to the Brooklyn Safe Deposit Company and left aii envelope with the bonds in for Mr.' Cooper to remunerate him for his time and services to her / ” on this trial she testified that the deceased said “ that he was always asking her about them and, of course, she had to keep her promise.” The court limited the recovery to extra services performed during the second and third trips to Europe, viz., to the trip of thirteen months just prior to the deposit of the bonds and to the trip of about five months immediately following.

There is not a scintilla of evidence from which the jury could find the extent or value of the so-called extra, services, unless the deposit of the bonds was sufficient evidence thereof. Whatever probative force that fact might be entitled to, as presented by the record on the former appeal, as now explained by the record before us it is clear that it is entitled to no weight whatever. Instead of putting bonds worth $6,000 out of her possession with the declaration that she did it to remunerate the plaintiff for services, it now appears that she first deposited nine $1,000-bonds in her own box in an envelope with a memorandum containing directions saying that it was done, not as remuneration for services, but to keep a promise, and that immediately thereafter she repented her generosity and destroyed the memorandum, making the statement that the plaintiff had been well paid. Certainly her act could not be an admission of the value of services yet to be performed ; if entitled to any force as an admission, it must have related solely to the value of the extra services performed from August, 1894, to September, 1895, and in fact the only testimony in the-case of the "rendition of -any extra services related to this trip. If an admission, therefore, it was an admission that the extra services, assuming they were such, of this $800 courier in going after a doctor, getting medicine, getting up and waiting on her. when necessary, and talcing charge of her money matters, paying her bills, during thirteen months, were worth $9,000.. But aside from, this defect in his case, which in my judgment "is fatal, the plaintiff has utterly failed to sustain ■ the onus of proving the contract upon which he relies. It is well settled that where services are rendered by one in the employ, of anothér, even .upon request, the presumption is that they were ren-. dered under the contract of employment, unless the- contrary is shown. (Ross v. Hardin, 79 N. Y. 81.) Has the plaintiff sustained the burden of showing that such acts of kindness as he has been able to prove were performed by him pursuant to a contract to pay therefor, or were they performed .for the purpose of ingratiating himself with the deceased, relying wholly upon her generosity -for his reward? Was the promise made by deceased a promise . to -pay. the value- of services rendered upon the faith of such promise, of was.fft merely a voluntary promise to reward a faithful servant ? The testimony of the sole witness relied .upon to establish the contract, in the light, of her cross-examination, utterly fails to establish an enforcible contract. According to this witness the plaintiff was 'constantly reminding the deceased ho-w'much he was doing for .her, and that he had lost his former place, and- she as constantly promised- to reward him. ■ Conceded!}' the loss of the place, which heleft to enter her service, -furnished no consideration-for the promise, and the court so charged; the entire testimony of this witness tends to establish ¿voluntary promise on the part of the decedent- to reward the plaintiff for past kindness and loss of.place, which he constantly kept- before her to stimulate her generosity; at least this theory is more consistent, with the testimony than any Other; hence it is not sufficient to' overcome- tlie presumption with ' which the plaintiff’s case is burdened; arid without any presumption against him, the plaintiff must fail, if his evidence is just 'as consistent with a theory upon which he is not entitled to recover as it is with the theory upon which he may recover, because a jury cannot be - permitted to guess which of two possible theories is correct. (Laidlaw v. Sage, 158 N. Y. 73; Searles v. Manhattan R. Co., 101 id. 661 ; Taylor v. City of Yonkers, 105 id. 202.)

The impression created by the plaintiffs evidence becomes conviction when we consider the evidénce of the defendant showing the conduct, and admissions of the plaintiff after the decedent’s death, and it is, therefore, clear that upon the whole case the plaintiff has failed to sustain the onus of proving his cause of action. Claims of ,this character against the estates of deceased persons naturally, excite our suspicion, and it is not requiring too much to insist that, the plaintiff prove his case.

I advise a .reversal of the judgment and order and the granting of a new trial, costs to abide the event.

Hirschberg, P. J., Jenks, Hooker and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  