
    Annie M. Keenan, Appellant, v. Henry Getsinger, Respondent.
    
      Services performed foí' a sister, a married woman — liability of the husband to pay therefor — conversation in the husband’s presence — evidence as to a promise of payment by the wife— opinion of a physician as to the value of services of a ruarse.
    
    Ia an action brought to recover for services rendered in attending the defendant’s wife during two confinements and during her last illness, it appeared that the plaintiff was the sister of the wife and the defense was that the services were gratuitous. While the plaintiff was testifying in her own behalf she was asked with reference to the third illness the question, “ Can’t you recollect tne conversation with defendant and defendant’s wife in regard to your going there?” to which the witness answered, “Yes.” The conversation was then, upon an objection being made to its reception, excluded.
    
      Held, that as the defendant was present at the conversation it was admissible.
    The plaintiff was also asked to state a certain conversation had with defendant’s wife at a certain time “ in regard to coming to care for her during her expected illness in confinement.”
    
      Held, that it was erroneous to exclude the evidence, as it boro upon the question whether the services were performed under such circumstances as would give the plaintiff the right to expect compensation.
    An attending physician may give his opinion as to the value of the services of one who acted as a nurse.
    
      Appeal by the plaintiff, Annie M. Keenan, from a judgment of the County Court of the county of Albany in favor of the defendant, entered in the office of the clerk of the county of Albany on the 16th day of October, 1895, upon the report of a referee.
    
      Fugena F. Flanigan, for the appellant.
    
      W. K. Ohite, for the respondent.
   Merwin, J.:

The plaintiff in this case sought to recover for services performed by her at the house of the defendant, in taking care of the defendant’s wife upon three occasions, at two of which the wife was ill in confinement, and the other occasion was at the last sickness and death of the wife. There was no dispute that plaintiff performed services on these occasions with the knowledge of the defendant at his house. In his answer he admits that at the periods of confinement the plaintiff rendered and performed certain services and attention usual in such cases. The plaintiff was the sister of the wife, and the defendant alleges that whatever the appellant did was gratuitous, and was rendered without any request .or promise to pay therefor on the part of defendant, or any one acting for or in his behalf. The referee found, among other things, that it was not proved at whose request the services were performed, and that the value of the services was not proved.

It is claimed by the aj>pellant that material errors were made by the referee in rulings upon the admission of evidence.

The appellant was upon the stand as a witness in her own behalf, and was asked, with reference to the third illness, the question, “ Can’t you recollect the conversation with defendant and defendant’s wife in regard to your going there ? ” The plaintiff answered yes, and the defendant then objected to the conversation, and the referee sustained the objection, and plaintiff excepted. The plaintiff was also asked to state a conversation with defendant’s wife during the wife’s last sickness, when defendant was present, in regard to having another nurse. This was excluded, and exception taken. These conversations were competent, the defendant being present, and it does not appear that they were fully stated at any other stage of the case.

The plaintiff was also asked to state a conversation had with defendant’s wife at a certain time in regard to coming to care for her during her expected illness in confinement.” This was objected to as incompetent, immaterial, no part of the issue, also hearsay, and that a wife can bind a husband only for support, unless she is his •authorized agent. The objection was sustained, and exception taken. We think this evidence should have been admitted. (See Reeves’ Dom. Rel. 79 ; Benjamin v. Benjamin, 15 Conn. 357.)

One of the issues in the case was whether plaintiff went and performed the services in question under such circumstances as would give her a right to expect compensation therefor.

There is some evidence in the case that the plaintiff performed the services at the request of the wife, and upon promise of compensation. The- referee, however, declined to so find, and wre cannot, therefore, say that the erroneous rulings above referred to were not injurious.

The physician who was in attendance upon the wife on one of the occasions referred to, after having testified that he knew the plaintiff, saw her at the defendant’s house during that illness, saw her perform the duties of a nurse 'there during that illness, and that the duties she performed as a nurse were proper, and also that he was familiar with the duties of a nurse, and had hired nurses, was •asked the question : Assuming that this plaintiff performed the ■duties of a nurse for the defendant’s wife during that period you have stated, in the spring of 1892, and did the services in a proper manner as nurse, what, in your opinion, would be the value of her services?” This was objected to by defendant as incompetent, immaterial and irrelevant, and that the services that the plaintiff ’ swore to were not sworn to in the presence of the witness.” The ■objection was sustained and exception taken. This ruling was, we think, erroneous, and was material.

Other exceptions were taken which need not be here considered. "We are of the opinion that there should be a new trial.

All concurred.

J udgment reversed, referee discharged, new trial granted, costs to abide the event.  