
    George B. Lewis, Appellant, v. John E. Du Bois, Respondent.
    Third Department,
    May 6, 1908.
    Evidence — action to recover for professional services—rebutting inferences from bill rendered.
    Where in an action by a physician for professional services rendered to a sister of the defendant, a bill rendered charging the services to the sister has been put in evidence, it is error to exclude evidence by the plaintiff as to whether . he had any conversation with the sister about the bill, or whether he had any agreement with her as to the performance of the services, or whether he had charged the same on his books to the sister, or whether the defendant stated that the sister was to pay the bill. Such evidence is admissible to rebut the inferences arising from- the bill as made out.
    Appeal by the plaintiff, George B. Lewis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 24th day of July, 1906, upon the report of a referee dismissing the complaint upon the merits.
    
      Lynch & Davis [Martin S. Lynch of counsel], for the appellant.
    
      George F. Andrews [Frederick Collin of counsel], for the respondent. ¡
    
   Kellogg, J.:

This action was brought by a physician to recover for services in attending Lucy Du Bois, the sister of the defendant. The plaintiff’s evidence tended to show that he performed the services for the defendant and upon his undertaking to pay therefor. The defendant’s evidence, while practically admitting that the funds would in the end be furnished by him, contends that he is not primarily liable for the bill and did not employ the plaintiff. The defendant put in evidence a bill rendered to him, the charge being made to Lucy Du Bois for professional services rendered her. This, unexplained, seems somewhat antagonistic to the plaintiff’s claim and has a tendency to show that the employment was by Lucy Du Bois, or that the services were being rendered upon lier account. The plaintiff was asked with reference to this bill, whether he ever had any conversation with Lucy Du Bois about it in any way for his services, whether there was ever any agreement or talk with the patient with reference to his being engaged to attend her or perform services for her,- whether he ever charged upon his book or otherwise the services to Lucy Du Bois, whether the bill was intended as a charge against Lucy Dm-Bois or was intended to indicate the party to whom the services had been actually delivered, and whether the defendant stated or indicated to plaintiff at any time that the patient was to pay or adjust the bill. These various questions were objected to and excluded, to which the plaintiff excepted. The plaintiff clearly had the right, by answering these questions, to rebut so far as his answers might, any inference to be drawn from the manner in which the bill was made out. The memorandum of the referee shows that the form of this bill was considered by him as important evidence against the plaintiff.

As the judgment must be reversed for this error it is unnecessary to consider the question whether the findings are sustained by the evidence or not. The judgment should, therefore, be reversed, the referee discharged and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed, referee discharged and new trial granted, with costs to appellant to abide event.  