
    Walter J. Stafford, Respondent, v. Eugenie H. Brown, as Executrix, etc., of Miles A. Stafford, Deceased, Appellant.
    First Department,
    June 7, 1907.
    Executors and administrators — action for services rendered to decedent. ,
    Evidence in an action brought against an estate for services alleged to have .been rendered tó a testator considered and held, insufficient to warrant a verdict for ' the plaintiff:
    Appeal by the defendant, Eugenie H. Brown, as executrix, etc., from a- judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day-of Hovember, 1905, Upon the verdict of a jury,' and also from-an order bearing date the 13th day -of Hovember, 1905, arid entered in said -clerk’s office, denying the. defendant’s motion for a new trial made upon the minutes. •
    
      Ralph Stout, for the appellant.
    
      Mark G. Holstein, for the respondent.
   Lambert, J.:

The plaintiff brings, this action to recover from the defendant, as executrix of Miles A: Stafford,-deceased,, the sum of $10,962.24, for ■services alleged, to have-been-rendered by the plaintiff to defendant’s testator during the period extending from the ■ 15th day of March, 1890,- to and including the 17th day of February, 1901, the day of■ the testator’s death. The defendant answering denied tlie material allegations of the .complaint, except that she admitted the payment by the testator of the sum of $2,375.32 to the plaintiff, and by way óf defense payment and the Statute of Limitations was pleadedX The case was submitted to the jury, resulting in a verdict -for $7,^74, and from the judgment entered upon such verdict, and from ihe order denying a new trial upon the minutes,-the.defendant appeals to this court.

Defendant’s testator was the owner of considerable real property in the city of New York arid in the'State of New Jersey. The plairitiff was a brother of the testator, and the’ former claims that he was employed by the latter to manage this property, and particularly to make repairs, and that the testator agreed to pay him $5 per day for services in the country and $3.50 per day for such work as he should perform in the city. The plaintiff’s bill for $13,337.50, on which he admits payments of $2,375.26, takes into consideration-every day of the time from the 15tli day of March, 1890, to the 17th day of February, 1901, the day of testator’s death, with the exception of holidays and Sundays. Wé have here a continuity of services upon a per diem basis which it will be difficult to parallel, and the verdict of the jury for $7,974 makes it incumbent upon this court to examine the evidence in the light of that public policy established by our courts to determine whether the judgment should stand. “ Public policy,” the court say, in Matter of Van Slooten v. Wheeler (140 N. Y. 624, 633), requires that claims against the estates of the dead should be established by very satisfactory, evidence, and the courts should see to it that such estates are fairly protected against unfounded ánd rapacious raids,” and this rulé has been cited and followed in many cases. (Matter of Marcellus, 165 N. Y. 70, 76; Conway v. Cooney, 111 App. Div. 864, 869; Linden, v. Thieriot, 105 id. 405, 406; Walbaum v. Heaney, 104 id. 412, 414; Matter of Milligan, 112 id. 373, 375.)

Beading the testimony in the view of the public policy of the State, we are unable to find that t(satisfáctory evidence” of the plaintiff’s case which is- demanded. The testator appears to have been a victim of Bright’s disease and to have been confined to his bed for a. period of several months before his death; his hands were-badly swollen, and he was under the influence of opiates at times, yet the plaintiff introduced in evidence a paper, without name or date, other than the dates of items, alleged to be in the handwriting of the testator, which gives an account in harmony with the plaintiff’s claim, and ending with the very day of testator’s death. There is no evidence of the purpose for which this sheet was made up; there is no evidence to show that it was intended to be a statement of account between the testator and the plaintiff; no evidence that any one saw him making up this statement, or that he made any inquiries as to' dates and amounts of any one; no evidence that he had books of account within reach, and it is most significant that while the plaintiff admits in his pleadings that he had been .paid $2,375.32, this paper, so accurate in its details of amounts, the, number of days and the rafe per day, makes no mention of any payments, having been made.-, . It was in evidence that, the testator was a methodical business man, of rather an economical turn,’ of mind, yet this paper, produced by the plaintiff in support of his claim, makes no .mention of any payments. It does not purport to be a statement of account with any one, and even the evidence in support of the . paper being in- the handwriting of the testator is very unsatisfactory. It rests upon the opinion of two or three persons who claimed to know his 'handwriting, who say that., it resembles his general writing, and that they believe it to’be in his handwriting. Two witnesses called by the defendant, and who had known, the testator and were familiar with Ins handwriting, are quite as strong ■ in the opinion that the paper is not in testator’s handwriting, and the. paper itself, handed up by counsel, in-connection with conceded specimens of his handwriting, indicates clearly that if the testatók did in fact prepare this statement, including items down to the very day of his death, he had retained a remarkably steady hand, and had- materially modified his style of letters .and combinations. For instance, in the conceded handwriting, where - the testator uses a capital “ D ” followed by '“ E ” as in “Dear” or “Dec.,’-’ he always uses the capital'form of “-E,” while in the paper-.under consideration the dates for December are all made not only with a small, k e,” but the form for the-abbreviation is “ Decbr ” instead of “ Dec,” as in his date lines. The capital “ J’s ” are likewise distinctly different in the paper and in the conceded specimens, and.this is likewise true of the capital- “ S’s.” In fact, making allowances for the difference in. a mere itemized account and the free-hand style of letterwriting, it is evident to us that the weight of evidence is against holding' that this, statement is in the hand- • ■ writing of the- testator. It is difficult to believe that a man confined to his bed with Bright’s disease, ip the condition described in the evidence, could have written the memorandum at any time within three months of his death, and it. would be absurd, to say that. the testator, preparing this memorandum at any considerable length of time before his death, would -have fixed tlie termination of the items upon the day of his own death; would have given credit for days’ work not yet performed, and fix the exact time when the employment was to cease. In fact the p%per seems to us practically without probative force. It is so inherently improbable that this sick man could have prepared this paper without any of his family or attendants having knowledge of the samé, that even if the handwriting itself was less in doubt, it would still lack in that element of satisfactory evidence which the law requires in cases of this character.-

With this paper out of the consideration,-there is no evidence upon which this verdict can be sustained. While there is evidence from which the conclusion might be drawn that the plaintiff had, from time to time, performed services for the testator, there is no evidence of the amount of time, or of the value of the services rendered, if We may except the vague testimony of Frederick O.Knowles, who testified that he was a partner of Miles A. Stafford for about five years, -ending in 1895, and that the firm employed the plaintiff in making repairs, and that he was paid five dollars per day for such work, and that he -heard Miles A. Stafford say to the plaintiff that he was to have three dollars and fifty cents per day for work in the city, and five dollars, with board, at the hotel at Schooley Mountains: It is a significant fact that Mr. Knowles testifies that he paid his portion of the amount earned by the plaintiff at the hotel during the partnership, which involved five years of the time that plaintiff claims lie was employed by tlie testator, ■ and for which he claims for every working day. Mr. Knowles gives no intimation of how many days the plaintiff worked for the firm, and, from his testimony, it is evident that the work was confined to repairs about the hotel, which would hardly have taken months of his time for five years, yet he has recovered upon the theory that he was employed practically every day for eleven years in making repairs upon this hotel and a few pieces of real estate in the city of New York and elsewhere. It should be borne, in mind, likewise, that the testator was, during a considerable portion of this time; an active business man, and that he. employed a firm of real estate brokers to collect the rents upon his city properties, and that he authorized these brokers at times to pay to the plaintiff an allowance of twenty-five dollars .per month, which the plaintiff accepted, and never made any claim that he was owed large sums of money by his brother. It is also important to remember that, while the plaintiff made no mention of any other compensation, he occupied two apartments of the testator in the city of New York, for which, lie paid no rent, the rental value being twenty-seven dollars per month.

There is some incidental testimony .calculated to show that the plaintiff did some work; that he was. paid at tiipes at the- rate of five dollars per day, but none of the evidence, apart from the paper which we have discussed, attempted to show any definite time of employment. ■ The' only fair inference from the oral evidence is that'the plaintiff was only engaged in making repairs upon 'a few pieces of real estate at various times* and that he was paid- for this at the rate of three dollars and-fifty cents to five dollars per day, and that in addition to. this he had an" allowance of twenty-five dollars per month, with apartments, and there is nothing to show that the two thousand three hundred and seventy-five dollars and thirty-two cents, concededly -paid to him, did not cover all of the testator’s obligations to him.' At least the evidence' is so unsatisfactory,, so' lacking in definiteness, that we are persuaded that it would be contrary. to the established policy of the law to permit the judgment to stand. '

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, Laughlin; Clarke-and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  