
    William S. Forbes, App’lt, v. Theodore Chichester, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Physicians—Proof of employment.
    Employment of a physician cannot be inferred from the fact that decedent invited him and his wife to accompany him on a trip to Europe and paid their expenses and that he requested to be kept informed of their movements in case he might need professional treatment, when they travelled separa' ely, and no professional services were rendered.
    Appeal from judgment confirming report of referee.
    Reference of a claim against a decedent’s estate. Plaintiff made a claim for $5,000 for ¡irofessional services. The testimony showed that decedent invited plaintiff and his wife to go to Europe with him and gave him a check for fifty dollars and letters of credit; that they separated in London and did not meet again; that decedent desired to be kept informed of their movements in case he should need plaintiff’s services, There was no proof of services rendered, except that plaintiff’s wife testified that the doctor “ was giving him advice,” but she states that she did not hear what was said. The referee reported in favor of a dismissal of the complaint. The report was confirmed, the court at special term delivering the following opinion:
    Cullen, J.—I think the plaintiff’s counsel right in his contention that the referee’s findings of fact cannot be considered on this application, and that the question to be considered is, was there sufficient evidence to submit the question of fact to a jury. Ho express employment was proved. It was, therefore, incumbent upon the plaintiff to show a state of facts from which the law would imply an employment and promise to pay. If a physician renders professional services, the law will imply a promise to pay their fair value, in the absence of proof showing such services were intended to be gratuitous. But the plaintiff does not bring himself within the principle, for he did not render professional services. The facts, then, should be such as to justify the inference that the plaintiff had accompanied the deceased in his trip abroad in the capacity of attending physician, at the request and upon the employment of the deceased. I am of opinion that there was not enough proved to warrant the submission of that question to a jury had the case been on trial before that tribunal. Motion to set aside report denied and report confirmed.
    The defendant should have his costs and disbursements.
    
      George A. Strong, for app’lt; Walter Edwards, for resp’t.
   Pratt, J.

If it be conceded that the plaintiff’s contention is right, that the referee before granting a nonsuit was bound to view the evidence for the plaintiff in the most favorable light, and that if there were any legitimate inferences upon which to base a judgment in favor of plaintiff such a judgment should have been rendered, we fail to find any error.

There was an utter failure to make out a case proper to be submitted to a jury.

The referee was not bound to pick out a piece or two of the evidence and hold that an inference in favor of the plaintiff might be drawn from that, and render judgment regardless of the rest of the evidence. The true question submitted to the referee was whether, upon the whole case as presented, a judgment for the plaintiff could be sustained.

The criticism upon the plaintiff’s case made by the judge at special term goes to the exact point upon which the case must turn.

Ho promise can be implied in favor of plaintiff, for the reason that it does not appear that he rendered any service. Ho express promise is proved, and it follows that plaintiff must fail in his action.

We reach this conclusion with regret, for as has been well said, the character and standing of the plaintiff are such as to relieve him from any suspicion of presenting an unfounded claim. But public policy requires that demands against deceased parties must be strictly proved, and to relax that rule would give rise to evils far outweighing the inconveniences resulting from its strict enforcement ; inconveniences which could be obviated by the exercise of ordinary care in procuring written or other evidence of contracts not dependent for validity upon the continuance of the life of either party.

Judgment affirmed.

Barnard, P. J., and Dykman, J., concur.  