
    Burton J. Hopkins, Resp’t, v. Frank W. Clark, as Administrator, etc., App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Trial—Reserving questions.
    Questions arising upon objections to the introduction of evidence cannot be reserved by the referee without the consent of the adverse party.
    
      2. Appeal—Harmless error.
    Exceptions to the introduction of evidence is rendered harmless by the fact that the subjects, to which such evidence relate, are not considered by the referee in the final determination of the case.
    3. Witness—Section 829.
    Where, in an action against an administrator, the plaintiff has been examined by the defendant to prove the making of a note by him to the decedent, he is at liberty, in his own behalf, to state the entire transaction relating to the making, including the consideration, of the note.
    4. Same—Husband and wife.
    A "wife may, in an action by her husband for her services to decedent, testify as to conversations with decedent in respect to such services.
    5. Evidence—Declarations.
    The declarations of the decedent, in an action to recover a claim against his estate, not made in the presence of or to the plaintiff,of his purpose to induce plaintiff to make the arrangement out of which the claim arose," though not evidence of such arrangement, may be admissible to corroborate other evidence thereof.
    6. Same—Hypothetical question.
    The reception of evidence of the value of certain services, as described by plaintiff's wife, in response to a hypothetical question, based upon her description of them alone, is not error.
    Appeal from a judgment in favor of plaintiff.
    
      H. H. Durfee, for app’lt; M. Hopkins, for resp’t.
   Bradley, J.

The defendant’s testator died about September 1, 1883. This action was commenced May 8, 1885. Its main purpose was to recover for alleged services of the plaintiff, his wife, and other members of his family, performed for the decedent from in April, 1877, to the time of his death, including the expense of removing plaintiff’s furniture and other personal property from his premises to those of the testator in the spring of 1877. The defendant was the adopted son of John Clark, and after his marriage, until the spring of 1877, he resided in a house upon the farm of his foster father, and worked the farm. The latter also resided in another house upon the farm. Early in that year the defendant concluded to leave the farm, and go into business elsewhere. Thereupon the plaintiff, who owned and occupied a small farm a few miles distant, was requested by the testator to move onto the farm of the latter, occupy the house to be vacated by the defendant, work the farm, etc. The plaintiff’s wife was the adopted daughter of the decedent, and there is evidence tending to prove that he stated that she would be remembered by him in his will, and that he would do as well by her as he did by Frank. This expectation may have been some inducement to the plaintiff to go onto Clark’s farm when and as he did. At all events, such inference is permitted by the evidence. As it finally turned out, the testator gave, by his will, nothing to the plaintiff’s wife, but by it gave his property to Frank W. Clark, the defendant. The decent was advanced in years, and the evidence tends to prove that he was quite feeble a considerable portion of the time the plaintiff was on the'farm; that the plaintiff and his wife, and more especially the latter, assisted in waiting upon and taking care of him; that she also performed other services in Mr. Clark’s family ; that the plaintiff’s boys also performed services, by way of doing chores, for the decent; and that those services were worth $100 per year for six years, making $600. This is the amount charged by the plaintiff for such services in his statement presented to the defendant before he commenced the action. It does not very clearly appear upon what specific arrangement the plaintiff worked the farm. But the fact that he and Clark each had a share of the crops tends to prove that he operated it on shares. The plaintiff charges by his complaint that the defendant’s testator became indebted to him, for services other than those before mentioned, in the sum of $150, and gave evidence to the effect that he built new fences on the farm, cleared some of the land of underbrush and stone, made an open and blind ditch, trimmed the orchard, repaired the barn and stables, built a hog-pen, and drew Mr. Clark’s firewood and coal. While the plaintiff gave evidence tending to prove that the value of those services exceeded $200, the evidence, as a whole, in view of the statement of claim made and submitted by the plaintiff to defendant before suit, and of his relation to the farm, in working it, does not fairly justify the allowance of this sum, but does permit him to charge for those services the sum of $101.50. There is evidence tending to prove that Mr. Clark, to induce the plaintiff to come onto and work his farm, promised to pay his expenses in moving, which, his evidence tends to prove, amounted to $78. But the recovery of this, as an independent claim, seems to have been barred by the statute of limitations, which was pleaded as a defense. Nothing appears to take it out of the operation of the statute. That claim must, therefore, be excluded from the recovery. The claim, as here allowed, amounts to $701.50. The defendant’s counterclaim, established as found by the referee, is $182.18, leaving a balance of $519.32, which, with interest from the time of the commencement of the action to the time of the entry of the judgment, $293.19, amounts to $812.51.

Numerous objections and exceptions were taken to the introduction of evidence, and in many instances the questions raised by the objections were reserved,—some with, and others without, consent. This method of disposing of objections to evidence has hitherto been disapproved by the courts, and it is not allowable, in practice, to reserve questions arising upon objections to the introduction of evidence without consent. Sharpe v. Freeman, 45 N. Y. 802; Lathrop v. Bramhall, 64 id. 365; Wright v. Reusens, 133 id. 298; 45 St. Rep. 183.

The defendant’s counsel took exceptions to the rulings finally made upon such objections. In the present case the defendant was not prejudiced by the reservations, so far as they may be deemed made without consent. And much of the evidence, to the introduction of which exceptions were taken, was rendered harmless by the fact that the subjects to which such evidence related were not considered by the referee in the final determination made by him, as appears by his report.

The defendant alleged as a counterclaim the making and delivery by the plaintiff of his promissory note to the defendant’s testator, of date April 11, 1883, for $65, and read the note in evidence. The plaintiff, in reply, as a witness in his own behalf, was asked to state the consideration of the note. The objection interposed by the defendant’s counsel on the ground that the evidence offered related to a personal transaction with the decedent, and was within the inhibition of section 829 of the Code, was overruled, and exception taken. The witness stated that the consideration of the note was the price of certain personal property purchased by him of the defendant’s testator. The proof of the consideration was important for the plaintiff, to repel the presumption, which otherwise might have arisen, that the note was made and taken in settlement of matters then existing between the parties to it. Lake v. Tysen, 6 N. Y. 461. But, if the plaintiff had been examined by the defendant to prove the making of the note, he was at liberty, in his own behalf, to state the entire transaction relating to the making of it. Nay v. Curley, 113 N. Y. 575; 23 St. Rep. 496 When the note was offered and put in evidence, it was described as “the paper identified by the plaintiff as having been made by him.” This imports, as appears by evidence, that on his previous examination by the defendant on the trial, the fact that he made the note was proven, which rendered competent the testimony so given by him after the introduction of the note in evidence.

The exceptions were not well taken to the reception of the testimony of the plaintiff’s wife concerning conversations, in which she took part, between the plaintiff and the decedent, and to her testimony as to the value of the services rendered by her. His relation, as husband, enabled the plaintiff to charge for the services of the wife. He does not derive the alleged claim arising for her services from her. Porter v. Dunn, 131 N. Y. 314; 43 St. Rep. 193.

While the declarations of the decedent, not in the presence of or to the plaintiff, of his purpose to induce him to come and stay upon his farm, furnished no evidence of any arrangement with the plaintiff to do so, they were admissible as corrobative of the facts in that respect appearing by other evidence. It seems that shortly prior to the time the declarations, to the evidence of -which objections were taken, were made, the decedent had been advised of the purpose of Frank W. Clark to leave the farm, and had, through another, communicated that fact to the plaintiff, and his desire to have him and his family move onto the farm, and succeed Frank in his relation to it and to the affairs of the testator. Although the plaintiff was not in the presence of the decedent at the time of the conversation, he was in another room, and within hearing of whát was said. Whether his evidence of it was admissible, within the spirit of the provisions of section 829 of the Code, may be questionable. Holcomb v. Holcomb, 95 N. Y. 316; In re Dunham, 121 id. 575; 31 St. Rep. 858; In re Bernsee's Will, 141 N. Y. 389; 57 St. Rep. 601. But as his evidence did not substantially differ from that of the three witnesses who were present, and as the only material facts to which those declarations of the decedent related were dependent upon and appeared by evidence other than that of those declarations, it is deemed unnecessary to consider the question of the admissibility of the plaintiff’s testimony concerning that conversation.

The reception of evidence of the value of certain services, as described by the plaintiff’s wife, and based upon her description, alone, of them, was hot error. The question thus put to the witness was in the nature of a hypothetical question. McCollum v. Seward, 62 N. Y. 316; Seymour v. Fellows, 77 id. 178. It would have been otherwise if the inquiry had not thus been restricted. Reynolds v. Robinson, 64 N. Y. 589; In re Snelling, 136 id. 515; 49 St. Rep. 695.

It is urged with much force, on the part of the defendant, that there was no liability of the decedent to the plaintiff on account of any of the matters alleged by the plaintiff, and that whatever they treated as matter of claim of either against the other were from time to time adjusted, settled, and paid. It is not deemed necessary here to amplify by statement the facts which the evidence tended to prove. But, having made a careful examination of the evidence, if is sufficient to say that the inferences fairly-derivable from the evidence warranted the conclusion of the referee that the plaintiff was entitled to recover the amount hereinbefore mentioned.

The plaintiff was entitled to recover interest from the time of the commencement of the action. Mansfield v. N. Y. C. & H. R. Railroad Co., 114 N. Y. 331; 23 St. Rep. 739.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to the sum of $812.51; and in that event the judgment to be so modified, and as modified to be affirmed, without costs of this appeal to either party.

All concur.  