
    Clara Blumert, Respondent, v. William M. Hoes, Public Administrator of the County of New York, as Administrator, etc., of Martin Brennan, Deceased, Appellant.
    First Department,
    July 8, 1908.
    Executor and administrator—services rendered to decedent—failure to show value — record — motion for new trial — appeal.
    In an action against an administrator to recover for services rendered to the decedent in caring for and expending money for a child, a judgment for the plaintiff will he reversed for failure of proof, where the plaintiff kept no account of expenditures and merely made an estimate as to what would be a fair amount per week.
    Although a motion to set aside a verdict and for a new trial has been made and denied, if the order does not appear in the record, the appellate court is confined to a consideration of exceptions taken at the trial.
    Houghton, J., dissented, with memorandum.
    Appeal by the defendant, William M. Hoes, as public administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 10th day of December, 1907, upon the verdict of a jury, and also (as stated in the notice of appeal) from “the ruling and order ” denying the defendant’s motion to set aside the verdict and for a new trial.
    
      George L. Carlisle, for the appellant.
    
      Edwin T. Taliaferro, for the respondent.
   Scott, J.:

The defendant appeals from the judgment and also from “ the ruling and order ” denying the motion to set aside the verdict and for a new trial. The cáse on appeal discloses no such order, although a motion seems to have been made and denied. • We are, therefore, confined to a consideration of the exceptions taken during the progress of the trial. Many of them relate to the exclusion of evidence which was properly excluded. The exception to the denial of defendant’s motion, at the close of the testimony, to dismiss the complaint requires, however, some consideration. The action is against the administrator of the estate of Martin Brennan, deceased, and its nature is best - disclosed by the 1st paragraph of the complaint: That on or about arid between February 1st, 1904, and June' 1st, 1906, plaintiff rendered' services to Martin Brennan, deceased, at Ms special instance and request, in caring for and providing a home for Irene Sutters, an infant, and paid out and expended money at the request of said Martin Brennan, deceased, in purchasing food, clothing, books and other necessaries for said infant.” From this and the following clause of the complaint it is clear that the plaintiff’s claim covers both her own services in caring for the infant, and moneys actually paid out and expended by her in behalf of said infant, and in view of the rather large sum which she. claims, it is evident that the item of moneys expended constituted no small part of the claim. At the close of the testimony defendant’s counsel moved to dismiss the complaint for failure of proof -as to the items of damage claimed and this motion was denied. The only evidence as to value was that given by pláintiff herself, who was asked: From the time that Irene went to your house to live up to the time of Mr. Brennan’s death, considering the care that' you bestowed upon her, the expense that she was to you, what you paid out for her, the care of her, food, clothing and all that, what, would be the reasonable value of the services rendered and the expenses; how much per week?” To which she replied: “ Well I think I. have — if you want to have a good education, I think $9 to $10 would' not be too much. Then she must go to school, $9 to $10 I thought.” Upon cross-exarriination it appeared that the witness had kept no account, and was quite unable to give any idea as to the amount of her expenditures, and since the amount of such expenditures constituted an important element of her claim, and of the question which elicited her estimate, it is quite apparent that her answer was without value in establishing the amount for which a verdict should be rendered in her favor. As there was no other evidence upon that subject there was not sufficient evidence to submit to the jury on the question of value, and the motion to dismiss should have been granted for lack of proof. The proof of the contract upon, which plaintiff sues consists of the evidence of a number of witnesses who testify that at different times they heard Brennan say that if plaintiff would care for the child he would pay what was necessary, but none of them testify to any definite sum which he agreed to pay. The plaintiff’s claim, therefore, so far as concerns the question of the amount to be recovered, must rest upon satisfactory proof both of the value of her own services and of the amount she has been required to pay out, Such proof need not be exact to a dollar, but should be sufficiently definite to enable the jury to render an intelligent verdict. Of such proof there is none in the case.

The judgment and order must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Ingbaham, McLaughlin and Clabke, JJ., concurred; Houghton, J., dissented.

Houghton, J. (dissenting):

I dissent on the ground that there was some proof of value, and hence as matter of law the defendant was not entitled to a dismissal of the complaint.

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