Opinion
May, 1905.
V.B. Van Wagonen, for the appellant.
Roscoe Irwin and Charles Irwin, for the respondent.
The proof shows that the plaintiff was a barber employed by one Lowerhouse at his barber shop in the Mansion House in the city of Kingston, at which house Cornell lived during all the time in question, and until he died; that plaintiff was employed by the deceased to shave him daily, including Sundays, at his room in the Mansion House, and that at the time of shaving him he aided him in lacing his shoes, putting on his stockings, assisting him with his cuffs, necktie and collar and in brushing his clothes. The proof also shows that Cornell paid the plaintiff daily during all this time the sum of twenty-five cents, except on Sundays, when the plaintiff was paid by Cornell the sum of one dollar; that plaintiff paid the twenty-five cents daily to his employer, Lowerhouse, but retained the dollar paid to him on Sundays as his own. The proof also shows that these services were rendered in the morning of each day and required from fifteen minutes to a half an hour in their performance, and that the time required for shaving was from fifteen to twenty minutes.
The claim of the plaintiff was never presented to the deceased in his lifetime. This fact alone casts suspicion upon the validity of the claim, and the court cannot sanction its payment, except upon satisfactory proof of its validity. ( Kearney v. McKeon, 85 N.Y. 136, 141.)
There is no proof and no finding that the plaintiff ever promised to pay for these alleged extra services. There is some proof that Cornell felt kindly towards the plaintiff, and that he said he did not know what he would have done without him; and that he was going to start him in business for himself in a barber shop. And one witness testified that Cornell said he was going to start plaintiff in business for himself for what he had done for him. But all this comes far short of a promise to pay the plaintiff for these services as extra services, and this testimony is not sufficient from which such a promise can be implied. At the most it merely showed a friendly interest in the plaintiff, and that the kindly disposition of the deceased towards him was such that he would be pleased to aid him in starting business on his own account if the opportunity offered. The facts that the plaintiff was paid at the conclusion of all the services rendered the deceased each week day a specified amount, which was given to his employer, and that on each Sunday Cornell paid the plaintiff an extra or larger compensation for like services, which the plaintiff retained as his own, show very clearly that Cornell thought he was paying daily for all the services rendered, and negative the idea that any portion of such services rendered was regarded by either party as extra services. This is especially so in view of the fact that there is no proof that there was any special or extra compensation agreed upon at the time for any of these services as extra work, and the case comes far short of being supported by that clear and satisfactory proof which is required in cases of this character to justify a recovery. The judgment should, for these reasons, be reversed on the law and on the facts, the referee discharged and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on the law and on the facts, referee discharged and new trial granted, with costs to appellant to abide the event.