
    Erhardt Knauer, Respondent, v. Francis W. Seagrist, Jr., Appellant.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Action for services and for moneys paid on request — Proof of services and disbursements.
    Proof of the rendition of services to a decedent, as well as their price or reasonable value, and proof of expenditures made for him and of their reasonableness must be made in order that a recovery for them may be had against one who is alleged to have made himself liable therefor and whose answer to a complaint therefor puts these matters in issue. • i
    Appear by the defendant from a judgment of the Municipal Court, borough of Manhattan, third district, in favor of the plaintiff, rendered hy the court, after a trial had without a jury.
    The nature of the action and the facts, so far as they are material, are stated in the opinion.
    Edward S. Clinch, for appellant.
    Oscar P. Willmann, for respondent.
   Giegerich, J.

The plaintiff’s claim is based upon the alleged promise of the defendant to compensate him for services rendered to the uncle of the latter, one Joseph Seagrist, during his last illness and to reimburse him, for moneys expended in relation thereto. The complaint set forth the items of such claim as follows:

Furnished room, two weeks at $3.................. $6 00
Paid Doctor Campbell one visit................... 5 00
Plaintiffs services (two full days), getting doctor, medicines, 3 calls on defendant, etc., etc............... 25 00
Paid for preparing room as requested, whitewashing, papering, etc ............................... 20 00
Paid for medicines as per prescriptions............. 2 50
For pint champagne (Pommery Grene)............ 175
Tea, bouillon, toast, etc., etc...................... 6 50
Paid nurse 9 weeks at $15....................... 135 00
Furniture destroyed, burned after death, as per doctor’s orders................................. 80 00
$281 75
It was stipulated upon the trial that the interest amounted to.................................. 98 00
Making a total of............................. $379 75

The trial justice gave the plaintiff judgment for $373.36 damages, with costs and allowance, which is $6.39 less than-the amount claimed with interest. The answer of the defendant was a general denial.

The plaintiff dining the period in question was engaged in letting furnished rooms, and the deceased, who occupied one of such rooms, was suffering from consumption. The testimony introduced in plaintiff’s behalf tended to show that on June 7, 1892, one Campbell, a physician, advised the removal of the deceased to a hospital or home, a suggestion which the defendant would not adopt, and a conversation ensued which is detailed by the witnesses as follows: The plaintiff testified that Dr. Campbell suggested that the sick man have better rooms and be nursed; he wanted to move him from the house; Francis Seagrist said leave him here; I will pay for it; I am responsible; he said, I will pay for all expenses. On account of that we did not move him, but left him at the house.” * * * “ He said the same expressly in the presence of the doctor, my wife and his uncle, that he would be responsible for the amount which it cost.” * * * “ He said let me make the old man as comfortable as possible, I am responsible. We expected his death every hour.” According to Mrs. Knauer, the wife of the plaintiff, the defendant expressed the desire that his uncle be made as comfortable as possible, and that she should “ give him all he needed, that he would pay all the bills and be responsible.” Dr. Campbell’s testimony is to the effect, that he advised the removal of the defendant’s uncle to a hospital or home, and the defendant said “ Ho, he could be taken care of there, and he would be responsible.” The defendant, who testified in his own behalf, pronounced the testimony of these witnesses, regarding such alleged promise, as false, and further testified: I asked Dr. Campbell who gave him orders to go there; he said Mr. Knauer. I said, How much are you out up to the present time; I did not order you and I have no business to pay anything. He said, $10. I said that I don’t want on my account or anybody else to pay any more money. I paid him $10.” In respect to the payment of the sum just mentioned, the defendant is corroborated by Dr. Campbell, who testified, “ that Mrs. Knauer paid for the first visit he made there, and when Mr. Seagrist paid him $10, he paid that back.” The repayment of said sum was not denied by the plaintiff, and, therefore, it was clearly an error to include this amount or any part thereof in the judgment.

Conceding that the alleged conversation of June 7, 1892, can be construed as an agreement on the part of the defendant to1 compensate the plaintiff for the services which he might thereafter render to the deceased, and reimburse him for any moneys he might expend for the trained nurse, medicines, stimulants and food, still the judgment, with respect to the items included therein, is not supported by any competent evidence. The only proof offered in relation thereto is to be found in plaintiff’s testimony as follows: “ Q. Look at the complaint and say if that contains a statement of what is due you from the defendant; read the items? ” The paper was then handed to the witness who, after reading the items set forth in the complaint, was further interrogated: “ Q. Amounting in all to how much? A. To $281.75.”

Here, certainly, there was no proof that any services whatever were rendered by the plaintiff, or that he expended any of the sums so read off by him, except the item of^lSS for nurse hire, but as the record fails to disclose any evidence of the rendition of the services, and whether the sums so paid were the agreed price or reasonable value thereof, the proof in this regard was likewise insufficient, and it follows that the justice erred in allowing this item as well as all the other items for such alleged services and disbursements.

The scraping of the walls of the room which the deceased had occupied and their repainting, and the destruction of the carpet and 'bedding unquestionably were wise sanitary precautions; but in the absence of more satisfactory testimony, we cannot say that it could be reasonably inferred from the conversation above noted ■that the defendant agreed to pay for such repairs, and for the property so destroyed. At all events, as neither the nature nor value of the same was shown, the items should have been disallowed.

As the record does not contain any competent evidence in support of the judgment, it follows that a new trial must be ordered. The case seems to have been tried by the plaintiff upon the assumption that the rendition of the services, and the reasonable value thereof, and the expenditure of moneys for the benefit of the deceased, and the reasonableness of the items therefor were not disputed by the defendant, although formally put in issue by the pleadings, but the return fails to show that such was the understanding of the parties when the cause was tried.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Beekmak, P. J., and Gildebsleeve, J., concur.

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