Mulhern v. Carrard — 94 N.Y.S. 741

Majority

p. 741

MULHERN v. CARRARD.

(Supreme Court, Appellate Division, First Department.

April 7, 1905.)

Headnote

1. Administrators—Claims—Evidence—Sufficiency.

The unsupported testimony of a claimant is insufficient to establish against an estate a claim for personal services rendered to the decedent during his lifetime.

[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 903%.]

2. Same—Evidence—Sufficiency.

Evidence held insufficient to establish against an estate a claim for personal services consisting of taking care of premises and nursing and attending the decedent during his lifetime.

p. 742

Appeal from Judgment on Report of Referee.

Action by Johanna Mulhern against Lydia Garrard, as administratrix, and Jules Chatelan, administrator, of Frederick Garrard, deceased. From a judgment for defendant, plaintiff appeals.

Affirmed.

The following is the opinion of the referee:

This is a claim for $909.93, inclusive of interest to April 22, 1904. It is based upon work, labor, and services alleged to have been rendered for Frederick Garrard, now deceased, during several periods of time intervening the 1st day of August, 1898, and the 26th day of August, 1902. Mr. Garrard was the owner of the premises 1746 Madison avenue, and the adjoining house in 115th street, New York City, and the claimant was the janitress of said premises. The first item of her charge is for looking after the flat in which Mr. Garrard lived from August 1, 1898, to August 1, 1901, at $10 per month. The second item is for attendance, nursing, supplying nutriment, and looking after the flat for 30 weeks between the dates of August 1, 1901, and August 26, 1902, at fifteen dollars ($15) per week. .

The first question, therefore, is whether the services were rendered as alleged, and to the determination of that we ifiust look to the testimony of some disinterested witness in support of the claimant herself. She, of course, testified, that she rendered services as stated, but her unsupported testimony would not be sufficient in a case of this sort. Now, the main supporting witness is the husband of Mrs. Mulhern; and it appears that he was a printer, but'had not done much since the invention of typesetting machinery, and had lived in the premises for several years prior to the death of Mr. Garrard, in 1902. The compensation for janitor services had always been $20 a month, and, so far as appears in the testimony, this was his sole source of income. This witness testified that his wife rendered the services stated, but it is not clear that he is a disinterested party because he frequently refers to the compensation which was alleged to have been agreed upon as coming from Mr. Garrard to “us” (meaning himself and wife), and said, with reference to an alleged agreement made with Mr. Garrard by him, that he was willing to take anything in the shape of money for his wife’s services. Again, when the witness was asked by his wife’s attorney: “Q. What would be the fair value per month for taking care of those five rooms?” he said “A. Just to clean them and keep them in order? Q. Yes. A. Fifty dollars. Q. You got $10 a month? A. Yes; but I would-consider it worth $50.” So that the testimony ofv this witness, in the light of these discrepancies and others that could be readily pointed out, is not to be taken too seriously. There were some other witnesses offered, who swore that they saw Mrs. Mulhern from time to time in Mr. Garrard’s flat, carrying food therein, or doing labor in and about the care thereof, such as sheJ claims to have done; but not one of these witnesses' was in position to know or pretended to say that Mrs. Mulhern was in the apartment rendering services continuously from day to day, during the period covered by her claim; and, while she herself admits that Mr. Garrard was sometimes absent from his apartment during the period for which she claimed $15 per week for nursing and otherwise looking after him, she says that she did not keep any memorandum of his absences—only kept her account in her head. And thus the casa stands substantially on behalf of the claimant.

Now it .appears on behalf of the estate that during all the time of the alleged rendition of these services Mr. Garrard was a man of considerable means, of close and regular habits, partly caring for himself, possessing ample funds, and in every way able to discharge any and all the obligations which he was under to Mrs. Mulhern. The fact that the Mulherns were people without means and of small income, dependent upon their labor for their living, would seem to require some clear explanation on their part for waiting thirty-six (36) months to collect from the owner of the premises in which they lived compensation at the rate of $10 a month said to be due them for the care of his apartment. ■ No such explanation is given in this case. On the other hand, it appears that the services of janitor were paid to the time of Mr. Garrard’s death, and the excuse which is alleged to have been assigned by

p. 743

Mr. Garrard himself for not paying his obligations, to wit, that he was in lawsuits and had lost heavily in stocks, is not borne out by the evidence in the case. It is shown beyond question that Mr. Garrard was at all times able to meet just demands made upon him, and also that he was in the habit of having ample funds upon his person; and it is not to be presumed, under such circumstances, that he would neglect his duty to pay a domestic for looking after his apartment, if he hired one for that purpose, for a period of thirty-six (36) months. The best that can be made of the case on this branch is that Mrs. Mulhern’s services were occasional, not regular, and were paid for as rendered.

With regard to the claim for nursing, supplying nutriment, etc., for 30 weeks from August 1, 1901, to August 26, 1902, it is sufficient to say that the evidence here shows that Mr. Garrard was riot in condition to require any such services during that time. On the contrary, it appears from the testimony of his friends of long standing and his brokers, whose office he was in the habit of visiting regularly, that, while he was in failing health for a year prior to his death, it was only during the last two or three weeks of his life that he was in such physical condition as to require the constant help and assistance of a nurse or attendant. During these last few weeks Mrs. Schwenck, who had known Mr. Garrard for many years, was called upon in natural order to give the assistance; Mr. Garrard being a man of no family, and his nephew having married her daughter. Mr. Garrard’s nephew and wife, Mrs. Schwenck’s daughter, also helped to care for him during this critical period, to give him such aid as he required in the last days of his existence. Mrs. Schwenck testified that she offered to compensate Mrs. Mulhern for such services as she rendered during these last days, and she was met with the response, “Why I would do anything for Mr. Garrard, if I could; he was such a good man always to me.”

The burden of proof as to the rendition of the services not having been sufficiently borne out by the claimant, it is unnecessary in strictness to dwell upon the question of the alleged agreement with Mr. Garrard for compensation for such services. Mr. Mulhern is the sole reliance on this point. Bearing in mind that this witness on direct examination gave the figure as $15 per month for nursing and supplying nutriment, and charitably assuming that this was a lapse of memory or verbal inaccuracy on his part, yet it appears on cross-examination that he was not clear as to times and amounts, and it was only a supposition on his part that his wife earned the money with which she bought food as alleged for Mr. Garrard. He did not know where she got it. Certainly his testimony is not sufficient to fasten a contract upon the estate of a deceased person, especially in view of the fact that no such contract was necessary or even excused by the circumstances then existing.

It is clear in the whole case that the claim has not been established as required by law, and that it should be disallowed, with costs and disbursements to the defendants.

Argued before VAN BRUNT, P. J., and HATCH, • PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

H. M. Gescheidt, for appellant.

Frank Moss and Isidor Weis, for respondent.

Judgment affirmed, with costs.