Wernet v. Karutz — 140 A.D. 114

Majority

p. 114

Catherine Wernet, Respondent, v. Charles H. Karutz, as Executor, etc., of Laurens Darde, Deceased, Appellant.

Second Department,

October 7, 1910.

Headnote

Evidence — action to recover for services rendered to decedent — transactions with decedent —■ when answer not responsive.

Where a plaintiff suing an estate for services rendered to the decedent during his lifetime testified that a charge of thirty dollars per month was reasonable, and when asked on cross-examination how she arrived at that figure replied that the decedent told her that he would pay her thirty dollars per month after a certain date, and that there was much work to do for him, it is error to refuse to strike out the answer.

Not only was such answer not responsive, hut it was incompetent under section 839 of the Code of Civil Procedure, where the bar of the statute had not been waived by examining the executor in liis own behalf concerning the transaction, or by asking the witness to recount the transaction with the decedent. Under the circumstances the. answer intruded by the witness cannot he deemed to have been called for by the question.

Appeal by the defendant, Charles H. Karutz, as executor, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 8th day of February, 1910»

p. 115

Karutz & Olsen, for the appellant.

Edward G. Nelson, for the respondent.

This judgment must be reversed. The plaintiff brings this action against the defendant as the executor of the last will and testament of Laurens Darde, deceased, claiming for work, labor and services performed by the plaintiff at the request of the said Laurens Darde, deceased, as his housekeeper, .and for other services, and for money loaned. The case is one of that character where the plaintiff has withheld the claim until after the death of the party for whom the alleged services were rendered, and the claim is for double the amount which she was receiving during at least a portion of the lifetime of the deceased. In addition to the extra demand for services as housekeeper, there is a demand for ten dollars per week, during the same time, for taking care of the horse of the deceased, and then there is a claim for twenty-five dollars per week for services as nurse. Under such circumstances the courts have demanded a satisfactory degree of evidence, and a strict compliance with the conditions imposed by the statutes designed for the protection of estates.

Upon the trial, and after the'plaintiff had testified to so much as she was permitted to answer, she was taken in hand for cross-examination. She claimed thirty dollars per month for her services as housekeeper, and counsel for defendant asked her: “ How, yon say your charges, Mrs. Wernet, $30 a month during the time you served as housekeeper is a reasonable charge, is that right ? ” She answered, “ That’s right.” She was then asked : “ You didn’t work as housekeeper for any oue else before that time, did you ? A. Ho. Q. Then how do you arrive at your figure of $30 a month ? A. He says to her—.” Defendant’s counsel: “I object to any conversation, if your Honor pleases.” The witness then continued: “ Site says that in December, 1907, he told her that on the first of January her salary would be $30 a month; that he was a very sick man and she had a lot of work to do with him, and as soon as he would get that mortgage he would pay her the amount of $30 a month.” Defendant’s counsel moved to strike out the answer as not responsive, and that the conversation, being with a deceased per'

p. 116

son, was not admissible in evidence. The motion was denied, and defendant took an exception.

The motion should have been granted on .both objections. The ■ question under discussion was whether the sum of thirty dollars per month was a reasonable charge. The plaintiff had testified that it was a reasonable charge, and the defendant’s question was designed to get her ground for saying that it was a reasonable charge. What the deceased may have told her he was going to pay her, assuming but not deciding it to be competent to give the conversation, was not responsive; he may have been willing to give her much more than a reasonable amount. But beyond this, the testimony was clearly incompetent under the provisions of section 829 of the Code of Civil Procedure. The respondent practically admits this, except that it is urged that the defendant, by cross-examining the plaintiff, opened the door to this testimony, much of the same class of testimony appearing in the case, and evidently received upon the same theory. It is true, of course, that the objection is technically to the competency of the witness, but in the case now before us the witness was not offered for the purpose of testifying to the conversation ; she was there as a witness in her own behalf. She had testified on direct examination, and was under cross-examination. Defendant’s counsel was not her sponsor; he had a right to have his questions answered properly, and he had not invited her to tell of any conversations with the deceased. When she intruded an answer which under the law she had no right to make, the defendant had no other remedy than to move to' strike it out, and it was error on the part of the court to deny this motion, unless the defendant had opened the door to this line of testimony. This he had not done, for he had not examined the executor in his own behalf concerning this same transaction or communication, and it is only in such cases that the statute makes any exception. (Code Civ. Proc. § 829 ; Motz v. Mots, 85 App. Div. 4 , 6, 7, and authority there cited.) Even if the defendant had called the executor and the plaintiff had called out the matter on cross-examination, it would not open the door, and it certainly cannot when the plaintiff, called in her own behalf, intrudes matter on cross-examination which she was not invited to give by any fair construction of the question.

p. 117

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.