Charles Place, Respondent, v. Susan F. Place, as Executrix, etc., of William H. Place, Deceased, Appellant

Charles Place, Respondent, v. Susan F. Place, as Executrix, etc., of William H. Place, Deceased, Appellant. Second Department, November 22, 1907. Executors and administrators — action for services rendered to testator — erroneous ■ exclusion of evidence. In an action by a son against his father's estate to recover for alleged services rendered to the testator during his lifetime it is error to exclude testimony by the defendant showing that the' plaintiff at the same time was working at his own trade independently of any employment by the testator. So too, it is error to exclude evidence that after the rendition of the alleged services other services- were performed and a" bill rendered which did not include any charge for the services sued for. The rejection of such evidence cannot be sustained on the ground that the bill itself was the best evidence, when the sole ground of objection was that the testimony was irrelevant and immaterial, for, had the former objection been made, it might have been obviated by the production of the bill. Appeal by the defendant, Susan F. Place, as executrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 3d day of November, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of November,-1906, denying the defendant’s motion for a new trial made upon the minutes. The complaint alleges services rendered, goods, materials and board furnished to defendant’s testator. The answer contains a .general denial and an allegation of payment. The testator, William H. Place, was the father of the plaintiff, and the services were performed principally upon the testator’s farm. Willard N. Baylis, for the appellant. Timothy M. Griffing [Edward R. Ackerly with him on the brief], for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The record contains exceptions which we think require a reversal of the judgment. The defendant should have been permitted to show that the plaintiff was working at his own trade, independently of any employment by the defendant’s testator, during the time that he claims to have been employed by said testator. The defendant should also have been permitted to show that after the rendition of the services sued for other: services were performed and a bill rendered for the same which did not include any charge for the services sued for. Ho objection was made, to the testimony offered on this head on the ground that the bill was the best evidence, but' the objection was made on the ground that the testimony was irrelevant and immaterial. An objection that the bill itself was the best .evidence, might have been obviated by the production of the bill. Jenics, Hooker, Gaynor, Rich g,nd Miller, JJ.; concurred. Judgment and order reversed and new trial granted, costs to abide the event.