Lydia Kane, Respondent, v. Thomas J. Smith, as Administrator, etc., of Joseph McVey, Deceased, Appellant

Lydia Kane, Respondent, v. Thomas J. Smith, as Administrator, etc., of Joseph McVey, Deceased, Appellant. Second Department, November, 1905. Action, for value of board furnished intestate — insufficient evidence of contract to pay therefor. In an action against an administrator for the value of board and attendance claimed to have been provided for the intestate during his lifetime, it was shown that the plaintiff, who was a tenant of the intestate, had paid him rent for a long period of time, and that though she had furnished him board during this period she had never asked nor received any compensation therefor. The alleged contract for board was not in writing and rested solely on the oral evidence of plaintiff’s two daughters. Seld, that the evidence was insufficient to support a judgment for the plaintiff. Appeal by the defendant, Thomas J. Smith, as administrator, etc., of Joseph McYey, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk oí the county of Kings on the 12th- day of December, 1904, upon the report of a referee. J. Fred. Bullwinkel, for the appellant. Melville J. France [M. James McLauglin with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The judgment must be reversed because the evidence is .insufficient to support. it. The action is upon a claim for board and 'attendance of the defendant’s intestate for six years immediately preceding his- death. It is alleged th'at the intestate agreed to pay five dollars'a week to the- plaintiff. The case presented is that of a woman in very humble circumstances, chiefly dependent on the daily wages and contributions of her children, who lived iii housed owned, by the intestate (neither her relative nor her connection), boarded him at her table and .attended upon him for seventeen years without at any time asking or receiving or accépting from him the weekly board which he had agreed to pay,, and yet regularly paying him eleven dollars a month as rent for her apartment.There is no suggestion that at any time throughout all these years the intestate was unwilling or unable to pay under the alleged contract. Such a condition of relative living is to me inherently incredible, and there is no sufficient evidence to overcome the natural improbability of it. The alleged contract is not in writing, but is based upon the parol evidence of two daughters of the plaintiff. For of the two disinterested witnesses, one, a neighbor, testifies only to the fact that the intestate boarded"with the plaintiff, and the other to the value of the board and attendance. The case offends the rule of Rosseau v. Rouss (180 N. Y. 116, 121) and the authorities there cited and followed. Woodward, Rich and Miller, JJ., concurred. Judgment reversed and new trial granted before another referee, costs to abide the event; -