In re the Accounting of Maira

Appellate Division of the Supreme Court of New York

In re the Accounting of Maira

23 A.D.2d 957, 259 N.Y.S.2d 987, 1965 N.Y. App. Div. LEXIS 4214

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 1965

StatusPublished

Cited by1 cases

This text of 23 A.D.2d 957 (In re the Accounting of Maira) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Accounting of Maira, 23 A.D.2d 957, 259 N.Y.S.2d 987, 1965 N.Y. App. Div. LEXIS 4214 (N.Y. Ct. App. 1965).

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Opinion

Decree unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action to recover for room, board and care rendered to the decedent, we find that it was error to direct a verdict in favor of the executor. Even though both sides moved for a directed verdict, this did not waive the right to trial by jury of the factual issues presented which should have been submitted to it. (CPLR 4401.) Inasmuch as a new trial is required, we desire to point out that it was error to receive testimony by the claimant as to transactions with the decedent in viola[958]*958tian of CPLR 4519 (Lerche v. Brasher, 104 N. Y. 157, 162-164), and to exclude proof offered by an expert to fix the value of the personal services rendered. Claimant’s husband, having an interest in claim for room and board, was also incompetent to testify to transactions with the decedent. However, if the claim had been only for personal care and services rendered by claimant in which the husband could have no possible financial interest, then his testimony would have been competent. (See Domestic Relations Law, § 50; General Obligations Law, § 3-315; Neilitz v. Neilitz, 307 N. Y. 882; Matter of Manchester, 279 App. Div. 254; Stamp v. Franklin, 144 N. Y. 607.) (Appeal by claimant La Manna from a decree of Onondaga Surrogate Court dismissing the claim.) Present— Williams, P. J., Bastow, Henry, Noonan and Del Vecehio, JJ.

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Decree unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action to recover for room, board and care rendered to the decedent, we find that it was error to direct a verdict in favor of the executor. Even though both sides moved for a directed verdict, this did not waive the right to trial by jury of the factual issues presented which should have been submitted to it. (CPLR 4401.) Inasmuch as a new trial is required, we desire to point out that it was error to receive testimony by the claimant as to transactions with the decedent in viola[958]*958tian of CPLR 4519 (Lerche v. Brasher, 104 N. Y. 157, 162-164), and to exclude proof offered by an expert to fix the value of the personal services rendered. Claimant’s husband, having an interest in claim for room and board, was also incompetent to testify to transactions with the decedent. However, if the claim had been only for personal care and services rendered by claimant in which the husband could have no possible financial interest, then his testimony would have been competent. (See Domestic Relations Law, § 50; General Obligations Law, § 3-315; Neilitz v. Neilitz, 307 N. Y. 882; Matter of Manchester, 279 App. Div. 254; Stamp v. Franklin, 144 N. Y. 607.) (Appeal by claimant La Manna from a decree of Onondaga Surrogate Court dismissing the claim.) Present— Williams, P. J., Bastow, Henry, Noonan and Del Vecehio, JJ.

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23 A.D.2d 957, 259 N.Y.S.2d 987, 1965 N.Y. App. Div. LEXIS 4214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-maira-nyappdiv-1965.

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