Heyne v. Doerfler

Citation124 N.Y. 505,26 N.E. 1044
PartiesHEYNE v. DOERFLER.
Decision Date20 March 1891
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment upon the report of a referee appointed under the statute to hear and determine a claim against the estate of Maria F. Arlt, deceased. The amount of the claim as presented by the plaintiff amounted to $611, and is made up of two charges. One of them is for the board of Anna John and Emil John; the other is for professional services rendered as nurse by plaintiff for the deceased for various periods of time between June 2, 1887, and March 18, 1888. The referee reported in favor of the plaintiff to the amount of $350 of the claim, allowing the whole of the $200, and a portion only of the claim for services as nurse. The appeal to this court was allowed by the court below.

H. D. Birdsall, for appellant.

Jos. A. Burr, for respondent.

POTTER, J., ( after stating the facts as above.)

The plaintiff sought to recover for his services and attendance upon proof that he had rendered services for and attended upon the deceased at her house during her sickness, and at her request, and upon her promise to pay for the same at the rate he would have earned if he had worked at his business of making cigars. He also sought to recover the sum of $200, upon proof that the deceased had promised to pay him that sum if he would take and keep Anna and Emil John, relatives of the deceased, who had recently arrived at the house of the deceased from Germany, till they should get employment. The evidence introduced upon plaintiff's part to support these claims, including that given by the plaintiff himself, was weak and quite unsatisfactory; but, under the rule that prevails in this court in respect to reviewing evidence, we do not feel warranted in reversing the judgment upon that ground. But we think the learned referee fell into error in receiving some of the evidence given by the plaintiff himself in reference to personal transactions and communications between the plaintiff and the deceased bearing upon plaintiff's employment and a promise of payment by the deceased. To support the claim of $200 it was necessary that plaintiff should prove a contract between himself and the deceased to the effect that plaintiff had agreed to keep at his house Anna and Emil John, and the deceased had promised to pay him $200 for so doing. There is no pretense that such contract, if made at all, was not wholly made by parol. The plaintiff was allowed to answer, under objection and exception, that such evidence by the plaintiff was not competent under section 829, Code Civil Proc., this question: ‘Before Emil and Anna came to your house, did you have a conversation with Mrs. Arlt in reference to [their] coming? Answer. Yes, sir.’ This was one step towards proving the alleged contract between plaintiff and the deceased in relation to their going to plaintiff's house. Again, the plaintiff was asked and allowed to answer: ‘What did Mrs. Arlt say when Anna John was present? Answer. Aunt cried, and said I should take her, and I should receive $200.’ This answer was...

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3 cases
  • Warten v. Black
    • United States
    • Alabama Supreme Court
    • 30 d3 Junho d3 1915
    ...language of another. *** It must appear that the interview or transaction sought to be excluded was a personal one." See Heyne v. Doerfler, 124 N.Y. 505, 26 N.E. 1044. Ross v. Ross, 6 Hun (N.Y.) 182, substantially this definition, is quoted with approval in Duggar v. Pitts, 145 Ala. 358, 39......
  • Kroh v. Heins
    • United States
    • Nebraska Supreme Court
    • 2 d2 Junho d2 1896
    ... ... 657; ... Holcomb v. Holcomb, 95 N.Y. 316; Mills v ... Davis, 113 N.Y. 243, 21 N.E. 68; Nay v. Curley, ... 113 N.Y. 575-580, 21 N.E. 698; Heyne v. Doerfler, ... 124 N.Y. 505, 26 N.E. 1044 ...          Montague ... v. Thomason, 91 Tenn. 168, 18 S.W. 264, was a suit ... against ... ...
  • Chapin v. Mitchell
    • United States
    • Florida Supreme Court
    • 14 d3 Maio d3 1902
    ... ... method by which one person can derive impressions or ... information from the conduct, condition, or language of ... another.' Heyne v. Doerfler, 124 N.Y. 505, 26 ... N.E. 1044; Holliday v. McKinne, 22 Fla. 153. The ... testimony admitted is in violation of the exception in the ... ...

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