Woodward v. Bugsbee , 5 Thomp. & Cook 204 ( 1874 )

Barnard, P. J.

There is no principle involved in this case of sufficient importance to go to the Court of Appeals. The plaintiff’s brother came to plaintiff’s house and asked to be taken care of for a few days; he was sick; he had not been a member of plaintiff’s family. Plaintiff took him and cared for him during a sickness which resulted in death.

The complaint of which he died was an ulcerous discharge, most offensive and loathsome. The sick brother was very grateful, and made a will giving plaintiff $500. This will, for a formal defect in the execution, was rejected, and plaintiff recovered $440, by action. The general term have affirmed the judgment.

The only questions are: Was plaintiff prevented from recovery by the rule that no action lies between members of same family. This is made a question of fact by the case which the Court of Appeals would not reverse. The other question arises as follows: The plaintiff put on the stand as a witness a physician, who knew the price of services rendered by nurses to sick persons. He testified, however, that he had never seen a case so bad as this, and knew of no market value of the services rendered by plaintiff.

He was asked what, in his opinion, was the value of-plaintiff’s services? This was objected to and admitted, and exception taken. The general term thought it was no error for the reason that the witness knew the value of services similar in kind, but less in extent, and that, to prevent a failure of justice in such a case, the evidence was properly received.

The application for leave to go to the Court of Appeals is denied.

Motion denied.