Sands v. Sparling , 82 Hun 401 ( 1894 )

PUTNAM, J.

This action was brought for board furnished by plaintiff to defendants’ intestate for 47 weeks from 1884 to 1890. The claim was presented to defendants as administrators, disputed, by them, and referred under the statute. On the trial it appeared, that the board was furnished by plaintiff at her home, where she-lived with her husband. She carried on no separate business. A witness testified without objection that deceased boarded with, plaintiff during the time mentioned, and to conversations between: deceased and plaintiff indicating that deceased expected to pay-plaintiff for her board; and plaintiff’s husband testified that, at the time of the first conversation between plaintiff and deceased in; reference to board, he told his wife, if she did the work, she should, have the pay; that he had no interest in it whatever. The referee-held that plaintiff was entitled to recover for 35 weeks’ board, and,, on his report, judgment was entered accordingly.

While, ordinarily, when the wife lives with her husband, and has-no separate business, a claim for board in the family would belong to the husband, yet it has been determined that a contract between the husband and wife, by which he allows her to board a party and receive compensation therefor, is valid. In re Kinmer, 14 N. Y. St. Rep. 618; Burley v. Barnhard, 9 N. Y St. Rep. 587; Bowers v. Smith (Sup.) 8 N. Y. Supp. 226. See Birkbeck v. Acroyd, 74 N. Y. 356. We think, under the evidence in the case, the referee was justified in determining that the plaintiff was the owner of the claim for the board and services for which the action was brought.

It is urged by the learned counsel for appellants that the referee-erred in overruling the objections to testimony of plaintiff’s husband as to personal transactions had by him with deceased; that such testimony was incompetent, under the provisions of section 829-, of the Code of Civil Procedure. But the witness' was not the as- ■ .signor of the claim against deceased, under which the .action "was brought. He never had any legal interest .in such claim. Under the evidence in the case, the plaintiff was the only person who ever had any demand against the deceased; hence, the provisions of section 829 of the Code of Civil Procedure did not apply. Burley v. Barnhard, 9 N. Y. St. Rep. 587; Porter v. Dunn (N. Y. App.) 30 N. E. 122.

It is further urged by the defendants that the court erred in receiving testimony as to the value of the board furnished the deceased. On the trial, Austin Sands, the husband of plaintiff, in .answer to the question, “What kind of board was furnished for that period?” answered: “Beefsteak, ham and eggs, pie and cake, vegetables,—and sometimes something extra,—coffee, tea, bread .and butter, and ordinary table board.” On cross-examination by defendants’ counsel, the following question was asked. “In .speaking of board, you have said, ‘Milk, potatoes, and ordinary board’?” to which the witness answered, “Yes, and beefsteak.” This üs the only evidence given on the trial descriptive of the kind of hoard furnished, and it was not contradicted. The plaintiff, immediately after the giving of such testimony, produced two witnesses 'who testified that $5 per week was the value of ordinary board; that the board furnished deceased, as testified by Austin Sands, was •ordinary board,—which is another way of stating that the kind of hoard which Austin Sands had testified was furnished deceased was worth $5 per week. Doubtless, the more proper way to have shown the value of the board would have been to have proposed a hypothetical question, in which the board furnished was described as •sworn by the witness. Reynolds v. Robinson, 64 N. Y. 589; Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696; People v. McElvaine, 121 N. Y. 250, 24 N. E. 465. But in a peculiar case like this, where a description of the board furnished was only given by one witness, was ■uncontradicted, and consisted of but one sentence, we do not think that the referee erred in the ruling he made. We are of opinion that in this case the doctrine laid down by Danforth, J., in Seymour v. Fellow's, 77 N. Y. 181, applies. The learned judge, in delivering the opinion of the court, used the following language:

“In Reynolds v. Robinson, 64 N. Y. 595, the question was subject to the •same objection. The witness had heard the testimony of two physicians, .and had heard read the evidence of another. He was then asked for his opinion. It is obvious that it must be made up, if at all, upon the weight of evidence, the comparison of testimony, and his estimate of the accuracy and reliability of the witnesses from whose narration he was to form an ■opinion. He was required to consider the evidence detailed by a group of witnesses, and eliminate what to him seemed material from the irrelevant But none of these objections exist in this case. The question directed the ¡attention of the witness to the testimony of a single witness upon a single ¡subject, and was not other, in effect, than it would have been if the counsel had recited the statement of services rendered by the party, and, on that statement, asked an opinion of their value. As was held in McCollum v. Seward, supra, ‘This was equivalent to a question, assuming that the services ■rendered were as described by the witness, what they were worth.’ ”

See, also, McCollum v. Seward, 62 N. Y. 316.

We are also inclined to believe now that, if it was improper for ' the referee to allow, the witness to express an opinion based on ‘ what he had just heard the witness testify, the specific objection that the question was not a hypothetical one should have been interposed. Winters v. McMahon, 23 Wkly. Dig. 119, 120. We conclude that the judgment should be affirmed, with costs. All concur.