
    Carl R. E. Heyne, Resp't, v. John Doerfler, Ex’r, App'lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Decedent’s estates — Services.
    Despondent presented a claim against the estate for services as nurse and for board of decedent’s nephew and niece, which was rejected and referred. He proved that deceased had stated to others that she had promised him $200 to take the nephew and niece away, and also by the physician and claimant’s wife, that decedent said she would pay him all he lost and the same as a professional nurse. Held, that the claim was fully proven.
    2. Same — Evidence—Code Civ. Pro., § 829.
    Plaintiff was asked if he had a conversation with deceased about the nephew and niece coming to his house. Held, not improper under Code Civil Procedure, § 829, as it called merely for the fact that a conversation took place, and that was not the material fact to be proved.
    8. Same.
    Defendant having given evidence as to a conversation with deceased favorable to himself, plaintiff was allowed to give his version of the conversation. Held, no error.
    Appeal from judgment in favor of plaintiff, entered upon order confirming report of referee.
    
      H. D. Birdsall, for app’lt; Joseph A. Burr, Jr., for resp’t.
   Barnard, P. J.

The plaintiff presented a claim against the estate of Maria F. Arlt, deceased. The claim was composed of two items, one arising out of a special contract to furnish board to two nieces of testatrix, and the remainder of the claim was for personal services as nurse, rendered by plaintiff for deceased, at various dates betv/een June, 1887, and March, 1888, when she died.

The claims were fully proven so far as the same were allowed by the judgment.

As to the $200 claim it was proven by the witness, Steinitz, that the deceased, shortly before her death, stated to the plaintiff that she would pay the $200 “ that I promised to you for the board of Anna and Emil.” The deceased was proven to have stated to the witness, Fitting, that she would give the plaintiff $200 to take .away from her two parties who had come from Germany. The deceased made substantially the same statement to Mrs. Heyne. As to the remainder of the claim the deceased is proven to have ■said to her physician that the plaintiff was attending her as a professional nurse, and she would pay him all he lost, “ and the same as any professional nurse.” The deceased is proven to have told the plaintiff’s wife that “ she would pay for the service as nurse whatever plaintiff lost and more than that.” The plaintiff was a journeyman segar maker, and earned at his business fifteen dollars a week.

The question put to the plaintiff whether he had had a conversation with deceased about Emil and Anna John coming to his house before they came, was not improper. The answer proved nothing more than that there was a conversation. This was held to be on the verge of offense original, § 829 of the Code, but was not sufficient to reverse a judgment in favor of a plaintiff. Hier v. Grant, 47 N. Y., 278.

The mere conversation would be improper when that was the material fact to be proved. Maverick v. Marvel, 90 N. Y., 656.

The conversation was subsequently proven by the defendant. Anna John testified to a conversation with deceased favorable to the defendant. The plaintiff then testified as to his version of the ■conversation favorable to himself. The conversation was on a Sunday afternoon, and was overheard by Mrs. John in the yard. The plaintiff was up stairs with the deceased. There is no claim that there was more than one conversation between the plaintiff and deceased on the subject. There are no other exceptions which call for a reversal of the judgment.

Judgment affirmed, with costs.

Dykhan and Pratt, JJ., concur.  