
    John L. Yates, as General Assignee, etc., Resp't, v. John M. Root, as Executor, etc., App'lt.
    
      (Supreme Court, Appellate Division, Fourth Department,
    
    
      Filed April, 1896.)
    
    1. Witness—Section 839 of the code.
    A claimant cannot testify as to the value of services rendered to decedent if performed in his presence.
    3. Same—Opinion.
    In such action, a question calling for witness’ opinion of the value of his services “as appears hy the evidence herein,” is improper.
    3. Services—Value.
    A finding hy the referee that the services rendered “as manager, general overseer, his skill, experience and good judgment, were worth to the decedent the sum of $3 per day,” adopts an erroneous rule in measuring the value of such services.
    Appeal from a judgment m favor of claimant, entered on the report of a referee.
    J. B. Rafter, for app’lt; W. H. Van Steenburgh, for resp’t.
   HARDIN, P. J.

Upon a careful examination of the evidence, mo definite proof is found of the exact number of days of service rendered by Lowell for the deceased. The only definite evidence as to the labor performed by Lowell is found in the testimony of Wain man, the carpenter who was engaged in repairing the deceased’s building. He testified that he (the carpenter) commenced work for the deceased about the middle of October, 1892, and worked there until about March 25, 1893,—less some seven days. And he testifies,viz.: “I do not think there was a day, during the whole time I was there, but what Mr. Lowell was there. He was always working around at something.” The period of time covered by this witness does not exceed 138 secular days. This witness was allowed to testify that Lowell’s services “during that time were worth $2 per day, he boarding himself.” After some other evidence given as to the services rendered by Lowell for the deceased, in doing chores, and giving further and other attention to the business and affairs of the deceased, the plaintiff called Lowell as a witness; and thereupon several letters of the deceased, written to Lowell, were produced and read in evidence. In the letters the deceased mentioned the services and attentions that had been received from Lowell. Thereupon the following question was propounded to the witness Lowell: “What was the fair, reasonable value per day of the services so performed by you, as appears by the evidence herein, for H. Gr. Root ? ” This question was objected to “as improper, incompetent, and inadmissible; second, improper and inadmissible under section 829 of the Code of Civil Procedure, and tends to prove services by the witness for deceased, and prove personal transactions between this witness and the deceased; third, no foundation has been laid, by showing this witness to have knowledge of all the evidence herein.” The objections were overruled, and an exception taken, and the witness was allowed to answer, “The value is $2 per day.” From the course of the evidence, it appears that Lowell was present with Root a portion of the time, when rendering some of the services embraced in the question. As to such services the question called for a personal transaction, and was improper. Holcomb v. Holcomb, 95 N. Y. 316; Fisher v. Verplanck, 17 Hun, 150. In Taylor v. Welsh, 92 Hun, 272, it was held that it was not proper to allow a plaintiff to testify that he did chores, errands, etc., for the deceased, and that the admission of such evidence was harmful error, which required a new trial to be ordered. See, also, Heyne v. Doerfler, 124 N. Y. 508; 36 St, Rep. 497. The question propounded was improper in another respect. It called for the opinion of the witness of the value of the services performed, by him “as appears by the evidence herein.” It was not made clear that he knew and understood accurately all the evidence that had been given. In Reynolds v. Robinson, 64 N. Y. 589, a similar question was condemned, and in that case it was said, “It is not the province of a witness to reconcile, or draw inferences from, the evidence of other witnesses, or to take such facts as he thinks their evidence has established, and thus form and express an opinion.” The doctrine of that case has been asserted • in numerous other cases. Guiterman v. Steamship Co., 83 N. Y. 358 ; Hagadorn v. Insurance Co., 22 Hun, 249; Ayres v. Water Commissioners, Id., 297. We ought not to disregard the error in receiving an answer to the question propounded, as it does not clearly appear that no injury resulted from the error. Brague v. Lord, 67 N. Y. 499 Taylor v. Welsh, 92 Hun, 272.

The referee, in his report, says that the services rendered “as manager, general overseer, his skill, experience and good judgment were worth to the said H. George Root the said sum of $2 per day.” Instead of finding the actual value of the services, the referee seems to have adopted an erroneous rule in measuring the value of the services of the witness. The rule for estimating the services should have been their actual value, and not such value as-the services may have been supposed “to be worth to the defendant in the particular circumstances in which he was placed.” Perrine v. Hotchkiss, 58 Barb. 77. This is a case which, according to numerous authorities, we should scrutinize, and the claim should lie established by satisfactory evidence relating to the extent of the services and the value thereof. Kearney v. McKeon, 85 N. Y. 139; Rowland v. Howard, 75 Hun, 1; 56 St. Rep. 722; Forbes v. Chichester, 30 St. Rep. 370; Van Slooten v. Wheeler, 140 N. Y. 624. In the latter case it was said, “The courts should see to it that such estates are fairly protected against unfounded and rapacious raids.” See, also, Dorman v. Gannon, 38 Supp. 659, decided by this court in April, 1896. The foregoing views lead to a reversal of the judgment.

Judgment reversed and a new trial ordered, with costs to abide the event.

All concur.  