Shiel v. Muir — 22 N.Y. St. Rep. 829

Majority

p. 829

Dennis R. Shiel, Resp’t, v. Mary G. Muir, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Descent and distribution—Action—Fob services rendered—Against1

next of kin—When maintained—Code Civ. Pro., §§ 1837-1860.

An action by an attorney for services rendered to a decedent in bis lifetime, is properly brought against his surviving heir at law and next of kin under Code Civil Procedure, §§ 1837-1860.

2. Evidence—Proof of services.

It was competent for the plaintiff to give evidence of the number of days spent upon the case in which he was retained by the decedent.

3. Same—Of personal transaction with decedent—Objection not1

specified—Code Crv. Pro., § 829.

When evidence of a personal transaction with the decedent is admitted over objection, but only a general objection is made, and the ground of its incompetency is not called to the attention of the court, it cannot be considered upon appeal.

Appeal from a judgment entered upon the verdict of a. jury, and from an order denying defendant’s motion for a new trial on the minutes.

Alexander Thain, for app’lt; William, L. Snyder, for resp’t.

—This is an action by an attorney for services rendered one David McMaster in his life-time against his surviving heir-at-law and next of kin.

The evidence is abundant to prove the retainer and services and their value.

The verdict, therefore, is well supported and very moderate in amount in view of the testimony. The defense was sharp and technical, and it remains to be seen whether there were errors committed upon the trial sufficient to reverse the judgment.

The suit was properly brought under sections 1837 and 1860 of the Code of Civil Procedure. The case of Selover v. Coe, 63 N. Y., 438 , therefore, cited by defendant, was decided before the passage of the Code, and has no application.

The questions put to the experts as to' the value of the services were proper in form and were justified by facts-already proved.

p. 830

It was also competent for the plaintiff to state the number of days he worked upon the case. At most it was a question of the order of proof which is always in the discretion of the trial judge.

The most serious question and the only one requiring any •comment, was that which called for the fact of payment of $500, upon account by the deceased to the plaintiff. This, was, undoubtedly, a personal transaction and incompetent, under section 829 of the Code. But the objection must be unavailing here for several reasons.

The ground of its incompetency was called to the attention of the court, but only a general objection was made and exception taken. The point that it was within section 829, and therefore not competent, was not specifically stated, nor the fact that it involved a personal transaction with deceased, was not called to the attention of the court, and cannot now be considered, Lerche v. Brasher, 104 N. Y., 157 ; 4 N. Y. State Rep., 335.

Again, the employment and rendition of the services had "been so abundantly proved that whether or not he had received $500, was only important for 'the purpose of giving credit to the defendant; it certainly did not injure the defendant, and cannot now be urged to reverse the judgment.

We have examined the record fully, and find no errors.

Judgment affirmed, with costs.

.Barnard, P. J., concurs; Dykman, J., not sitting.