Opinion
April, 1927.
Judgment reversed upon the law and the facts, and new trial granted, costs to appellants to abide the event. The case was submitted to the jury on an erroneous theory. Plaintiff sued on a quantum meruit for certain services which she alleged she had performed for decedent. Neither the complaint nor the verified claim against decedent's estate contains any reference to a promise by decedent to compensate plaintiff by will. The Statute of Limitations barred that part of her claim which accrued more than six years before decedent's death; nevertheless the jury was charged that if plaintiff had delayed her suit upon the faith of an agreement to provide for her in decedent's will, the Statute of Limitations would not begin to run against her claim until after decedent had died. The learned court in its charge repeated the same statement more than once, and an exception at folio 195 brought about a withdrawal of that portion of the charge at folio 196. At folio 197, and again at folio 201, the same proposition was charged in another form, all of which was duly excepted to by defendants' counsel. Further, there is no evidence in the case that plaintiff rendered the alleged services pursuant to an agreement that decedent should compensate her by a provision in his will. We are also of opinion that the verdict of the jury is against the weight of the evidence. We think, therefore, that a new trial should be granted. Kelly, P.J., Manning, Young, Lazansky and Hagarty, JJ., concur.