Opinion
June, 1935.
Decree of the Surrogate's Court of Kings county, in so far as it adjudges that appellant's claim, as an assignee, for medical services rendered to the testator by Dr. Mary E. Potter be dismissed, reversed on the law and the facts, and the claim allowed to the extent of $5,000, with costs to all parties, payable out of the estate. There is believable evidence that Dr. Potter frequently treated the decedent, both at her office and at decedent's home, and the relationship existing between them was not so close as to give rise to the presumption that the services were gratuitous. The commissions accruing to Dr. Potter as executrix may not be considered as an offset to her claim for medical services. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.