
    William Buddington, Respondent, v. William N. Kennedy, Appellant.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, tenth district, borough of Manhattan.
    Menzo Dieffendorf, for respondent.
    Hardy & Kennedy, for appellant.
   Freedman, P. J.

The plaintiff brought this action to recover for services rendered the defendant, in attending, nursing and caring for him during an illness extending over a period of fifty-six days, and for which, as appears by the testimony, the defendant expressly promised and agreed to pay. The plaintiff claimed that the sum of two hundred and eighty dollars was no more than a fair compensation for such services, upon which he had been paid the sum of ten dollars upon account, but the court below reduced the claim to the sum of eighty-four dollars, for which the plaintiff had a judgment.

A careful examination of the testimony in the case does not disclose any reason requiring a reversal of the judgment. Placing upon the testimony of the defendant the construction most favorable to him, it only raises a question of fact between the parties as to whether the defendant expressly promised and agreed to pay the plaintiff for the services rendered by him, or whether they were intended by the plaintiff to have been wholly gratuitous. Upon that question the trial judge found in favor of the plaintiff. The numerous cases cited by the appellant’s attorney upon his brief do not apply to the case at bar.

They refer to cases where no express promise to pay was shown by the testimony and where there was no sufficient evidence to show an implied promise.

Judgment must, therefore, be affirmed.

Leventbitt, J., concurs; MaoLean, J., taking no part.

Judgment affirmed, with costs to respondent.  