
    (76 Hun, 39.)
    FORBES v. KENNEDY.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Assumpsit—Weight oe Evidence.
    In an action for services, a judgment for plaintiff will not be disturbed as excessive where plaintiff’s witnesses had testified, without contradiction, that the amount recovered was the value of the services rendered.
    Appeal from special term, Kings county.
    Reference of claim of Robert S. Forbes against Rachel L. Kennedy, as executrix of Robert L. Kennedy, deceased. From an order confirming the report of the referee, and denying a motion to set aside such report, and giving plaintiff judgment for $7,100.60, defendant appeals. Reversed.
    Argued before DYKMAN, PRATT, and CULLEN, JJ.
    Edwards & Odell, (Walter Edwards, of counsel,) for appellant.
    Martin & Smith, (Geo. A. Strong, of counsel,) for respondent.
   CULLEN, J.

This is an appeal from a judgment entered upon the report of a referee on a disputed claim against the estate of a deceased person. The report was confirmed at special term. When this case was before the court on a prior appeal we were of opinion that there was no evidence sufficient to make out the plaintiff’s case. Our judgment was reversed by the court of appeals, (125 N. Y. 769, 26 N. E. 914,) where it was held that the evidence was sufficient to require a court or jury to pass upon the question of fact. Accepting this decision that the question of fact as to the claimant’s employment as a physician by the deceased was fairly presented by the evidence, we cannot say that the referee erred in deciding that question in favor of the claimant. The case had to be proven by circumstantial evidence, and our prior decision was not based on our disbelief of any employment, "but on what we deem the insufficieney of the evidence legally to establish that fact. The referee found that there was no specific agreement as to compensation. The claimant, therefore, must recover on a quantum meruit. The referee has found that the claimant’s services were rendered on the implied promise by the deceased to bear all the expenses, and to pay what the services were fairly and reasonably worth. The value was found to be $5,000. This sum seems to us large, considering the plaintiff's ordinary professional income; but, as it was the value testified to by the witnesses for the plaintiff, and no evidence was given to controvert it, the finding in this respect must stand. But we can find no evidence in the case that the services were worth this sum over and above the expenses of the plaintiff, and no proof of any usage or custom that the patient should pay the physician’s expenses. There is no proof of what the expenses of the plaintiff were. Certainly the expenditures made by the plaintiff and his wife in traveling apart from the deceased should not fairly be termed expenses of the plaintiff’s employment. It is conceded that the deceased gave plaintiff £200 by a letter of credit. We cannot see why, in any aspect of the case, the defendant should not have credit for this sum. We think the judgment must be reversed, and a new trial had, unless the plaintiff stipulates to reduce the judgment by the equivalent of £200, with interest, in which case the judgment is affirmed, without costs of this appeal to either party.

PRATT, J., concurs.

DYKHAN", J. I am in favor of a new trial unconditionally.  