
    Mary Murphy, Appellant, v. Daniel P. Murphy, Jr., as Administrator, etc., of Ellen Moran, also Known as E. Moran, Deceased, Respondent.
    First Department,
    March 8, 1907.
    Contract — executors and administrators — action on alleged promise of decedent to make legacy in consideration of services.
    In an action upon an alleged contract hy a decedent to make a specific bequest in consideration of services rendered, it appeared that the plaintiff, a cousin of the decedent, performed certain household services for her at various times and had furnished certain meals but no proof was given of the value of the services or meals, the' plaintiff making no claim to recover on a quantum meruit. Although it was shown that the decedent had kindly intentions toward the plaintiff and had stated that she intended to leave her a legacy, the only proof that the promise was made in consideration of the services and board was the testimony of one witness who stated that the decedent told her “she had already promised” the legacy “for * * * taking care of her and doing her work.” On all the evidence,
    
      Held, that the complaint was properly dismissed in that the evidence did not show that the alleged promise was not made after the services were rendered and hence was without consideration, and that if it were in consideration of future services it was too indefinite to afford a basis for action;
    That the complaint being based on a specific contract and there being no proof showing the value of the services rendered,' the plaintiff could not recover on a quantum meruit.
    
    Patterson, P. J., and Lambert, J., dissented.
    Appeal by the plaintiff, Mary Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 30tli day of April, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at tlió New York Trial Term.
    
      Williann J. Bogenshutz, for the appellant.
    
      Francis J. Hogan [John McCrahon with him on the brief], for the respondent.
   Laughlih, J:

The plaintiff alleged that she performed' certain household services for the decedent and furnished her board and household necessaries, and advanced moneys to her at the request of ■ the decedent and upon her promise to pay the plaintiff the sum of $5,000 therefor by making a provision in her will for the payment thereof, but that the decedent died intestate, and judgment is demanded for the sum of $5,000 upon the contract to pay that sum for the services, board and necessaries furnished and moneys.so advanced.

Plaintiff and decedent were cousins, but they did not live together. Tip on the trial the plaintiff gave evidence tending to show that during a number of years she from time to time performed services for the decedent at the latter’s apartment, and that the decedent quite regularly came to plaintiff’s apartment and took breakfast with her, but she offered no evidence of the value of the services or board thus furnished other than evidence of declarations by the decedent tending to show that she intended at her death to leave the plaintiff $5,008, or all of her property, in consideration for the services rendered and for plaintiff’s attention and kindness to her. It is not alleged that $5,000 was the reasonable, value of the services rendered, board furnished, necessaries provided and money advanced, and plaintiff did not claim to be entitled to recover on a quantum meruit.

Although in an action to recover on an express contract to pay a specified amount for services, a recovery may be had on a quantum meruit, it is not at all clear that that, rule would apply in this case. The basis of this cause of action is an express contract by the- decedent to leave the plaintiff a legacy of $5,000 for services rendered, regardless of the extent or value thereof. It would seem, therefore,, that the judgment herein would.not be a bar to an action by the plaintiff for the value of the services rendered and board furnished, especially as the complaint is merely dismissed at the close of plaintiff’s case and the judgment does not purport to be a dismissal on the merits. We are impressed by the evidence that some of the services, at least, were rendered under circumstances ■which would .entitle the plaintiff to recover the reasonable value thereof. The nonsuit was apparently granted upon the ground that the plaintiff failed to show that the services were rendered pursuant to an agreement between the plaintiff and the decedent that the plaintiff was to be compensated therefor by a legacy of $5,000, to be provided for in the will of the decedent. The preponderance of the evidence offered by plaintiff merely shows that the decedent contemplated making some suitable provision in her will to show her appreciation of the plaintiff’s interest in her welfare as manifested by devoted attention and companionslrip and for services as well. At different times the decedent expressed to third parties her obligations to the plaintiff, and stated in effect that although only a cousin, she was more considerate than other cousins and relatives nearer in blood, and in fact that she was the only one who administered to decedent’s wants and contributed to her comfort. On some occasions she stated that she intended to leave the plaintiff $5,000, and on others she expressed an intention of leaving all her estate to the plaintiff. Only one witness called by the plaintiff gave testimony indicating that possibly the services were performed under an agreement that the plaintiff was to receive a legacy of $5,000 therefor. This witness was Catharine Maher, who lived with the plaintiff and was her friend. The testimony of the witness shows that the conversation took place at the home of the decedent about two and one-lialf years prior to her death. She testified that the decedent told her that she had already promised Mary Murphy $5,000.for seeing to her and taking care of her and doing her work ” and that the plaintiff was present at all conversations which she had with the decedent. The version she gave of this conversation on cross-examination was as follows : “ Mrs. Moran told me that Mary Murphy "was her old friend, the only one, the only cousin — or the only friend that would see to her and would take care of her, done her work, and she had promised her $5,000. That is what Ellen Moran told me, she had promised Mary Murphy $5,000.” This evidence was inconsistent with the other evidence offered by the plaintiff, which did not point to a promise made by the decedent to the plaintiff, but merely to the fact that the decedent intended to make some provision in her will for the benefit of the plaintiff. Moreover, the evidence of this witness, even if it were not inconsistent with the other testimony . offered in her behalf, would not warrant a recovery, and the court was justified in declining to submit it to the jury. It does not show that the services to which reference was made were past or future services. If past services, the promise would be without consideration beyond the-value of the services actually réndered. If it related to services to be rendered in the future, it is altogether too indefinite to afford a basis for a cause of action. Sufficient facts "are not shown to enable the court and jury to determine whether or not the plaintiff accepted the promise and rendered the services in reliance thereon, or whether or not the services contemplated to be rendered were in fact fully rendered in accordance with the intention of the parties.

It follows, therefore, that the judgment should be affirmed, with costs.

Houghton and Scott,. JJ., concurred; Patteeson, P.. J.; and LAmbebt, J., dissented.

Judgment affirmed, with costs. Order filed.  