
    Frederick Lange, Resp’t, v. Peter Kearney, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887.)
    
    Physician—Value op services—Evidence.
    In. an action brought to recover for the value of services rendered in a, surgical operation, it appearing that the amount to be charged depended upon the pecuniary condition of the employer, and that there was no fixed standard of value. Held, it was error to exclude evidence offered by the defendant to show that he was not rich, and what his income was, etc.
    Appeal from judgment on verdict.
    
      E. F. O. Dwyer, for app’lt; Hathaway db Montgomery, for resp’t.
   Per Curiam.

This action was brought to recover for services rendered as assigned.

There was no dispute as to the performance of the services, but there was as to the compensation to which the plaintiff was entitled.

Upon the trial it appeared conclusively that there was no fixed standard of value for surgical operations, the amount to be charged depending upon the pecuniary condition of the employer.

There was no evidence of the pecuniary ability of the defendant either given or offered on the part of the plaintiff, and when the defendant was called his counsel sought to show that he was not a rich man, and what his income was, and what income was necessary for the support and maintenance of himself and children, all of which was. excluded.

Upon the conclusion of the charge the learned judge was requested to charge that both Dr. Lange and Dr. Bridden, who were called on behalf of plaintiff, based their estimate as to the value of the services upon the means of the person to be charged, and that there was no evidence as to the means of the defendant. This the court charged.

Inasmuch as the estimate of the value of the services rested according to the statement of the plaintiff himself, upon the pecuniary ability of the defendant to pay, and inasmuch as the- defendant was not permitted to show what his pecuniary condition was, and thus directly to affect the estimate to be made of the value of the services according to the theory of the plaintiff himself, its exclusion was error.

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