
    Frank B. Shedrick, Appellant, v. Hannah M. Young, as Executrix, etc., of Jesse Young, Deceased, Respondent.
    
      Claim against the estate of a decedent for services as a watchman—proof required, in addition to a subscription paper to pay for services to be rendered—what proof of services rendered is competent.
    
    In an action for services, rendered by the plaintiff as a watchman to the defendant’s testator, the plaintiff placed in evidence a paper addressed to him, reciting as follows: “We, the undersigned, citizens of Ballston Spa, do agree to pay the sum set opposite our names for the purpose to pay a night watchman who will discharge his duties in a satisfactory manner. ” The paper was signed, among others, by the defendant’s testator and opposite Ms name were the figures, “.25."
    
      Held, that it was incumbent upon the plaintiff to show that he acted as watchman, in order to establish his right to recover any sum whatever;
    That the plaintiff should have been permitted to answer the question “did you render services as night watchman prior to his death?” for the reason that, as the subscription paper did not call for services to be rendered directly to the subscribers,- the question did not call for proof of services rendered to the deceased;
    That it was also error to refuse to allow a witness to answer the following questions: “Do you know whether or not Shedrick (the plaintiff) had charge of the defendant’s place of business as night watchman during, these years?" and “Do you know whether or not the plaintiff had an agreement with the defendant’? testator to watch his place of business on Milton avenue?”
    Appeal by the plaintiff, Frank B. Shedrick, from a judgment of the County Court of Saratoga county in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of March, 1900, upon the report of a referee dismissing, the complaint upon the merits.
    The appeal brings up for review the exceptions taken at the trial. The action is upon a disputed claim presented to the administratrix for services rendered by plaintiff in the lifetime of the deceased.
    The subscription paper referred to in the opinion is addressed to the plaintiff, and recites, “ We, the undersigned, citizens of Ballston Spa, do agree to pay the sum set opposite our names for the-purpose to pay a night watchman who will discharge his duties in a satisfactory manner.” The paper was signed by a number of persons, including the defendant’s testator, and opposite his signature are the figures, “ .25.”
    
      Edwcurd 8. Goons and James W. Yerbeok, for the appellant.
    
      J. 8. EAmoreaux, for the respondent.
   Kellogg, J.:

The plaintiff introduced in evidence a subscription paper purporting to be signed by Jésse Young, now deceased. The paper is of little value to support the allegations of the complaint without proof of extrinsic facts. The paper runs to “ a night watchman who will discharge his duties in a satisfactory manner,” and is addressed to plaintiff. Ho term of service is fixed; neither the beginning nor the ending. The twenty-five cents promised is uncentain as to whether daily, weekly, monthly or yearly. Under such circumstances there is obviously much to be proven before a recov ery is possible. How the plaintiff acted in respect to serving as night watchman thereafter, how the deceased acted touching such services and payment therefor, are important. It was optional with the subscriber to at any time withdraw from all obligation to pay, and notice of such withdrawal would have been sufficient. It was incumbent upon plaintiff to at least show that he acted as watchman to be entitled to any sum whatever. With the apparent view of making this proof the plaintiff was asked questions objectionable in form, and these were properly excluded as calling for a personal transaction with the deceased. Then he was asked this question “Did you render services as.night watchman prior to his death?” This was objected to as not admissible under section 829 of the Code. Bearing in mind that the subscription paper does not call for services to be rendered directly to the subscriber, I think this question did not call for proof of services rendered to the deceased, and, therefore, it was a proper question and the witness should have been allowed to answer. In view of the difficulties the plaintiff has tó surmount to make good his claim, he should have been permitted all the latitude the law allows. There is no apparent way to prove the services as night watchman except this way. This Way does .not imply a personal transaction.

I think also these questions, asked of witness Gilligan, were improperly excluded: Do you know whether or not Shedrick had charge of the defendant’s place of business as night watchman during these years ? ” “ Do you know whether or not the plaintiff had an agreement with the defendant’s testator to watch his place, of business on Hilton avenue ? ” The objection to this last question, that there was a writing introduced, and that must control, does not go to the form of the question and is not a good objection, for the reason that plaintiff-did not declare upon a written agreement, and he had in no way made the subscription paper the sole foundation for his action. He was at liberty to prove any other agreement he was able to prove.

These rulings were of sufficient importance to make the errors sufficient grounds for reversal.

The judgment is reversed, with costs to the appellant to abide the event.

All concurred; Parker, P. J., in result.

Judgment reversed, referee discharged and new trial granted, with costs to appellant to abide event.  