
    Marie Lucas, Respondent, v. J. Fred Boss and Martin Dienst, as Executors, etc., of Phillip Diehl, Deceased, Appellants.
    First Department,
    December 30, 1905.
    Decedent’s estate — insufficient -proof of promise by testator to pay for • services. '
    In an action by a niece against the estate of her uncle for .services admitted to have been rendered to his wife, it was-shown that the decedent had promised to remember the plaintiff in his will if she would remain with him and continue her services; that-she had not done so; that after leaving 'service she haa made a demand for a balance due, which was paid.' There-was no direct evidence ' óf "any promise by the testator to pay. ,
    
      Held, that the evidence was insufficient to sustain a verdipt for the plaintiff. • ,
    Appeal by the defendants, J. Fred Boss and another, as executors, etc., -of Phillip- Diehl, deceased, from a judgment of the 'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York-on the 5th day of October, "1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of October, 1905,. denying the defendants’ motion for a .new trial made upon the minutes.
    
      William L. 'Mathot, for the appellants.
    
      G. Murray Hulbert, for the respondent".
   Ingraham, J.:

The complaint alleges that between the 18th day of December, 1897, and the 20th day of May, 1901, plaintiff at the special instance and request of Phillip Dielil, .then living, performed certain -services as nurse to Margaret Diehl, the wife of the said Phillip Diehl, "at the agreed price and at a fair and reasonable value of $20 per week during said period which the said Phillip Diehl promised and agreed to pay, and that no part or portion thereof has since been paid, except the sum of $480 on account thereof, leaving a balance due to the plaintiff of $3,040.

There is no allegation that the plaintiff was employed by the defendants’ testator or that she rendered him any services. She alleges that for the services that she rendered to the defendants’ testator’s wife he promised and agreed to pay. He died on the 18th day of December, 1903,"something over, two years after plaintiff’s services terminated. The plaintiff was called as a witness and testified that prior to December 1, 1897, she had been employed as a domestic servant, receiving eighteen dollars per month; that about the 5th of December, 1897, she went to live with her aunt “ because I was broke down p” that this aunt was Margaret Diehl, the wife of the defendants’ testator; that while she was living with her aunt the aunt had á paralytic stroke and became perfectly helpless. At this'point it was conceded by defendants’ counsel that the plaintiff cared for the wife of the defendants’ testator, Margaret Diehl, from the 12th day of December, 1897, up to the 18th day of May, 1901, and that during that time she rendered such services as were required of her, more particularly by way of washing and dressing said Margaret Diehl; giving her her medicine, giving her massage treatments four hours per day, two in the morning and two at night, and electrical treatments; attending her generally, taking her out on "days when she could be taken out in a wheeled chair; accompanying her to the country and remaining-there, her constant attendant as she had been in the city; sleeping in the same room with the invalid during the night in order to be ready to render such services as the invalid might require during the night.” Whereupon the counsel for the plaintiff stated, we do not sue on any specific contract. * * * We claim that the services are reasonably Worth the amount charged in the bill that was served.”

There w'as introduced in evidence by defendants a letter written by the plaintiff to the defendants’ testator and his wife dated November 15, 19’01, informing them that she had been married on November third, and stating now I would like to ask for the twelve dollars which I have worked for and which 'arc due to me by right. It is not right that you hold back this money from me. ' If I hacl received as much money as I earned -and what you now pay for a nurse I would have a thousand dollars in the bank as good as a cent. Think over the matter, and you must yourself say that I am right. Ton can send me a Check for the money. That is the least trouble'. ■If others receive one hundred dollars for a" present, I should at least receive that, for which 1 have. worked, notwithstanding much has always been promised me.” f '

^ Plaintiff’s brother testified that in December, 1897, he learned of his aunt’s'illness ; that he had a conversation at that time, with •the defendants’ testator with respect to the plaintiff remaining in his household; that he told his uncle, “ I don’t like - the idea of my sister coming here and staying with you, as she can get better wages when she works outside for strangers, and she will have more liberty ; and then I said, another thing, it might make bad friends in the family. . And my uncle says,- you don’t need to be afraid of-that, I want your sister. here; she is the., only person that suits me and attends to your afint; *. * * don’t be worried, I will provide for her in the will.” He; further testified that the last conversation he ' had with the defendants’ testator was shortly before his sister left his uncle; that his uncle, sister and aunt were present; that the defendants’ testator said that he did not want the plaintiff to go and leave the place. ■ Witness said, “ ‘ uncle look at. that girl,’ I says, ‘ look'how that girl looks ; ’ I says, that- girl is sick,’ I .said, ‘ I can’t see ' it, she must go. away,’ and he says to. me, ‘ John,’ he says, ‘ Marie is well provided for, let 'her stay here.’ I says, ‘no, she can’t,:she is sick.’ ” . • -.

A physician who attended the plaintiff’s aunt testified in answer to a hypothetical question, assuming that the plaintiff rendered the services specified, that the reasonable, value' of the services was at least twenty-five dollars per week; that was the usual compensation paid to trained nurses. Another witness testified that she. was the wife of a relative of the defendants’ testator;' that shq first met him in 1898; that after the plaintiff left his house she had a' conversation, with him with respect to the plaintiff’s leaving, and that he said: “ Marie ought not to have left; he would make everything al] fight with her if she only stay'ed,. that he would remember her in the will; her wages, he knew, was not very much for the work she done, hut he would have made it all right in the will, and she was down in the will for it if she only would not have left.” Another physician who attended the defendants’ testator’s wife testified that . the plaintiff’s services were reasonably worth twenty-five dollars per week; that he had conversations with the defendants’ testator at different times; that he had said that Marie (meaning the plaintiff) was a niece of his wife, and they had no children, and ■ whatever they had when they died Marie would get all; he said that she was a good girl and everything waá going, to her when, he died; ’’ that when Marie left the house of her uncle she was run down and unable to work any more. Upon this evidence the plaintiff rested, and the defendants moved to dismiss the complaint. This motion was denied and the defendants excepted.

There is no direct evidence of any promise, of the defendants’ te'stator to pay for the services that the plaintiff rendered, nor could a promise to pay be implied from the mere rendition of services of a greater amount 'than the person rendering the services received when it was rendered. The only statement that was made by the defendants’ testator and which tends to prove any promise was that made to the plaintiff’-s .brother that the defendants’ testator would provide for the plaintiff in his will. Just what that provision, was to be was not stated. It was a statement of a benefit that would accrue to the plaintiff if she remained in his service, and such a promise was too indefinite to be enforced. The other statement made to the plaintiff’s brother was at the time that the plaintiff terminated her service, and that was a promise to make provision for the plaintiff if the plaintiff remained with him. That, however, she refused to do. The other declarations of the defendants’ testator proved were simply statements of an intention to make testamentary, provisions in favor of the plaintiff and contained no promise. The testator did make a provision for the plaintiff in his will, but that provision was merely nominal and not satisfactory to her. By giving this evidence all the weight that could be given to it there is nothing more than a promise that if the plaintiff remained in the defendants’ testator’s employ he would provide for her in his will; that she refused to remain and left against his protest, and he failed to make a satisfactory provision for her. It is difficult to see how there could be inferred from this testimony any promise to pay this plaintiff any sum in addition to that which she had received, and which is evident was the sum that the plaintiff was willing to and did accept for the services that she rendered. But this claim is. made against an estate of a dead man for services that ended more than two years before his death, for which no claim was made during his life.

The rule to be applied in determining actions of this character against the estate of a decedent has been many times stated by. the Court of Appeals, the latest expression being in the case of Rosseau v. Rouss (180 N. Y. 116), where it was said: “We have repeatedly held that such a .contract must not only be certain and definite, and founded upon an adequate consideration, but also that it must be established by the clearest and most convincing evidence. We have been emphatic-in condemning these agreements, because they ‘ have become so frequent in recent years as to cause alarm.’ We have been, rigid and exacting as to the sufficiency of the evidence to establish them, and have condemned the proof thereof through parol evidence given by interested witnesses.’ As such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises,’ we have declared that they ‘ should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses,’ ”

It must be apparent that this evidence fails to comply with these conditions. There- is no direct -evidence of any promise to pay the plaintiff any sum of money. There is no implied promise to pay more than she had accepted as the proper compensation for her services, and in the letter she wrote tó the defendants’ testator before his death she stated the claim that she had against him, and that was for one month’s wages at the rate. of compensation she had before received. 'Ho other claim was made until after his death; no indication that she claimed that money was due her- other than thé amount she claimed for one -month’s wages-. This claim is evidently based upon her disappointment in not receiving a substantial legacy in his will, but I do not think that the evidence justifies a finding that there was any contract to make a will in the plaintiff’s favor, as all that was stated was that the defendants’ testator intended to make some provisions Lor the plaintiff in his will; and if any contract for a legacy coiild .be implied it was upon the condition that the plaintiff should remain with him so long as he required her-services. That she refused to do. The evidence of any agreement, instead of being proved by substantial and convincing evidence, is sought to be established by incidental , conversations not in any form of a contract or agreement, but stating an intention as to the testamentary disposition of the testator’s property. While in many cases it is quite proper for the trial judge to submit questions of fact to the jury when there is any evidence to sustain a verdict after the verdict is rendered, it is the duty of the trial judge to consider whether the verdict is not against the weight of evidence, and if that clearly appears, it is his duty to set. aside the verdict and order a new trial. In actions against the estate of a decedent the trial judge should consider, the evidence in the light of the rule established by the Court of Appeals, which has been referred to. And unless the evidence comes' up to the standard indicated, the trial judge should not hesitate in setting aside the verdict; and thus, we think, the learned trial judge should have done in this case, for in no aspect of the case can it be said that the verdict was sustained by the evidence.

It follows, therefore, that the judgment and order should be . reversed and a new trial ordered, with costs to the appellant to abide the event. ■ .

O’Brien, P. J., Patterson and Laughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  