Earl, J.
After the marriage of the plaintiff with Miss Hughes, January 1, 1863, he took the testator’s farm on shares, and continued to occupy it until 1867, when he bought it. From 1863 to the time of his death in Movember, 1871, with the exception of short intervals, the testator boarded with him, and paid for his board at the rate of three dollars per week. Hence, there is little room for saying that lie was simply living with plaintiff as a member of his family, and that the services were rendered by plaintiff’s wife gratuitously, as an adopted daughter. Besides, the referee found, upon sufficient evidence, that the services were rendered upon the express request of the testator, and his promise to pay for them.
Plaintiff’s wife rendered the services in his house to a boarder therein. She was engaged in no business or service on her own account. She was in charge of his household, and, as part of her household duties, rendered the services to a person in her husband’s house by contract with him. She was then working for her husband, and not for herself, or on her own separate account. Notwithstanding the act chapter 90 of the Laws of 1860, she could still work for her husband, she could devote all her time and service to him, and the circumstances of this case are such as to warrant the finding of the referee, that the services were rendered by him through her. These views are not in conflict with
Brooks
v.
Schwerin
(54 N. Y., 343). There a poor woman went out to work by the day, earning wages, and it was held that the wages thus earned in labor outside of her household, and entirely disconnected from her household duties, belonged to her. But if the husband takes boarders into his house, or converts his house into a hospital for the sick, and his wife takes charge of his establishment, and thus aids him in carrying on his business, in the absence of special proof, all her services and earnings belong to her husband. Even under such circumstances, the husband might covenant and agree that his wife should receive pay for her services on her own account; but in the absence of some arrangement to that effect, the inference of law and fact would be that she was working for her husband in the discharge of her marital duties. Hence, the referee properly held that the husband was the proper person to sue in this case.
The evidence tends strongly, if not conclusively, to show that the understanding of all the parties was that the testator was to pay for the services rendered by Mrs. Reynolds by a provision for her in his will. If the referee, upon a new trial, finds that there was such an understanding, then the main'question to be determined will be, whether the provision made in the will for Mrs. Reynolds was sufficient to pay for her services. If he should find that it was, the plaintiff must be defeated. If he should find that it was not, then the plaintiff may
recover the bálance, after deducting the legacy of $1,500 to his wife. It is no objection to this view that the services were rendered by his wife under the circumstances stated. Under all the circumstances, his wife was clothed with authority to contract with the testator, and plaintiff’s assent to the mode of compensation must be inferred. The agreement in law, upon the assumption that the referee shall find the facts as above stated, was with the husband that the testator should pay for the services by a provision for his wife in his will. If he had failed wholly to make such a provision, it would have left the plaintiff with his entire cause of action. If he made such a provision in part only, then the husband has a cause of action for the balance.
(Jacobsen
v.
La Grange,
3 J. R., 199;
Patterson v. Patterson,
13 id., 379;
Eaton s. Benton,
2 Hill, 578;
Robinson
v.
Raynor,
28 N. Y., 494.)
The plaintiff was permitted, against the objection of defendants, to show that the stench produced by the cancer affected the health of Mrs. Reynolds. This evidence was competent, not to lay the foundation of any recovery for the loss of health, but to show the serious nature of the disagreeable service which plaintiff’s wife rendered. It was competent to show not only that the stench was offensive, but that it was detrimental to health.
The plaintiff was permitted, against the objection of defendants, to prove, by Dr. Martin, how much, in his opinion, it was worth to dress the cancer each time; also, how much, in his opinion, it was worth to take care of and nurse the testator, exclusive as well as inclusive of dressing the cancer; and also, by Dr. Moneypenny, how much, in his opinion, it was worth to nurse the testator and dress his cancer twice a day for a period of six years before his death. These doctors were not asked to give their opinion based upon the evidence of other witnesses. They had been acquainted with the testator, were familiar with the cancer and its offensive nature, and with the disagreeable service required in dressing it and taking care of him, and they knew the value of services required for nursing cancer patients. Under such circumstances, their esti
mates of value were competent to be placed before the referee.
The views thus far expressed are deemed proper with a view to the new trial, which must be granted for the error of the referee in overruling the objection to the evidence of Dr. Maynard, to which we now call attention. He testified that he had been a physician and surgeon for twenty-seven years; had treated many cases of cancer; had heard the testimony of Doctors Martin and Moneypenny, and heard their description of the cancer with which the testator was afflicted; that he was acquainted with the value of services in dressing such cases, and that he obtained his knowledge in dressing and nursing such cases; and that he had heard the testimony of plaintiff’s wife read. The following question was then put:
“
What would be the value of the services rendered by her in nursing and dressing the cancer of Mr. Hill during the last six years of his life ? ” Defendants objected to this evidence on the ground that the witness had no knowledge of the value of such services when rendered ; that he knew nothing of the services, except as informed by the evidence read to him; and that he was incompetent, under such circumstances, to testify to the value of the services; that he must state facts, and was not competent to give an opinion. The objection was overruled. Doctors Martin and Money-penny had described the cancer, and plaintiff’s wife in her evidence had also described it, and mentioned the services which she rendered. The witness had never seen Mr. Hill, and knew nothing about his condition and the character- of the services rendered, except from the description of other witnesses. Under such circumstances, it is settled upon authority that his opinion, as given by him, was incompetent.
(People
v.
Lake,
12 N. Y., 358;
Carpenter
v.
Blake,
2 Lans., 206.)
In such a case, it is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, or as he can recollect and carry in his mind,
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Earl, J.
After the marriage of the plaintiff with Miss Hughes, January 1, 1863, he took the testator’s farm on shares, and continued to occupy it until 1867, when he bought it. From 1863 to the time of his death in Movember, 1871, with the exception of short intervals, the testator boarded with him, and paid for his board at the rate of three dollars per week. Hence, there is little room for saying that lie was simply living with plaintiff as a member of his family, and that the services were rendered by plaintiff’s wife gratuitously, as an adopted daughter. Besides, the referee found, upon sufficient evidence, that the services were rendered upon the express request of the testator, and his promise to pay for them.
Plaintiff’s wife rendered the services in his house to a boarder therein. She was engaged in no business or service on her own account. She was in charge of his household, and, as part of her household duties, rendered the services to a person in her husband’s house by contract with him. She was then working for her husband, and not for herself, or on her own separate account. Notwithstanding the act chapter 90 of the Laws of 1860, she could still work for her husband, she could devote all her time and service to him, and the circumstances of this case are such as to warrant the finding of the referee, that the services were rendered by him through her. These views are not in conflict with
Brooks
v.
Schwerin
(54 N. Y., 343). There a poor woman went out to work by the day, earning wages, and it was held that the wages thus earned in labor outside of her household, and entirely disconnected from her household duties, belonged to her. But if the husband takes boarders into his house, or converts his house into a hospital for the sick, and his wife takes charge of his establishment, and thus aids him in carrying on his business, in the absence of special proof, all her services and earnings belong to her husband. Even under such circumstances, the husband might covenant and agree that his wife should receive pay for her services on her own account; but in the absence of some arrangement to that effect, the inference of law and fact would be that she was working for her husband in the discharge of her marital duties. Hence, the referee properly held that the husband was the proper person to sue in this case.
The evidence tends strongly, if not conclusively, to show that the understanding of all the parties was that the testator was to pay for the services rendered by Mrs. Reynolds by a provision for her in his will. If the referee, upon a new trial, finds that there was such an understanding, then the main'question to be determined will be, whether the provision made in the will for Mrs. Reynolds was sufficient to pay for her services. If he should find that it was, the plaintiff must be defeated. If he should find that it was not, then the plaintiff may
recover the bálance, after deducting the legacy of $1,500 to his wife. It is no objection to this view that the services were rendered by his wife under the circumstances stated. Under all the circumstances, his wife was clothed with authority to contract with the testator, and plaintiff’s assent to the mode of compensation must be inferred. The agreement in law, upon the assumption that the referee shall find the facts as above stated, was with the husband that the testator should pay for the services by a provision for his wife in his will. If he had failed wholly to make such a provision, it would have left the plaintiff with his entire cause of action. If he made such a provision in part only, then the husband has a cause of action for the balance.
(Jacobsen
v.
La Grange,
3 J. R., 199;
Patterson v. Patterson,
13 id., 379;
Eaton s. Benton,
2 Hill, 578;
Robinson
v.
Raynor,
28 N. Y., 494.)
The plaintiff was permitted, against the objection of defendants, to show that the stench produced by the cancer affected the health of Mrs. Reynolds. This evidence was competent, not to lay the foundation of any recovery for the loss of health, but to show the serious nature of the disagreeable service which plaintiff’s wife rendered. It was competent to show not only that the stench was offensive, but that it was detrimental to health.
The plaintiff was permitted, against the objection of defendants, to prove, by Dr. Martin, how much, in his opinion, it was worth to dress the cancer each time; also, how much, in his opinion, it was worth to take care of and nurse the testator, exclusive as well as inclusive of dressing the cancer; and also, by Dr. Moneypenny, how much, in his opinion, it was worth to nurse the testator and dress his cancer twice a day for a period of six years before his death. These doctors were not asked to give their opinion based upon the evidence of other witnesses. They had been acquainted with the testator, were familiar with the cancer and its offensive nature, and with the disagreeable service required in dressing it and taking care of him, and they knew the value of services required for nursing cancer patients. Under such circumstances, their esti
mates of value were competent to be placed before the referee.
The views thus far expressed are deemed proper with a view to the new trial, which must be granted for the error of the referee in overruling the objection to the evidence of Dr. Maynard, to which we now call attention. He testified that he had been a physician and surgeon for twenty-seven years; had treated many cases of cancer; had heard the testimony of Doctors Martin and Moneypenny, and heard their description of the cancer with which the testator was afflicted; that he was acquainted with the value of services in dressing such cases, and that he obtained his knowledge in dressing and nursing such cases; and that he had heard the testimony of plaintiff’s wife read. The following question was then put:
“
What would be the value of the services rendered by her in nursing and dressing the cancer of Mr. Hill during the last six years of his life ? ” Defendants objected to this evidence on the ground that the witness had no knowledge of the value of such services when rendered ; that he knew nothing of the services, except as informed by the evidence read to him; and that he was incompetent, under such circumstances, to testify to the value of the services; that he must state facts, and was not competent to give an opinion. The objection was overruled. Doctors Martin and Money-penny had described the cancer, and plaintiff’s wife in her evidence had also described it, and mentioned the services which she rendered. The witness had never seen Mr. Hill, and knew nothing about his condition and the character- of the services rendered, except from the description of other witnesses. Under such circumstances, it is settled upon authority that his opinion, as given by him, was incompetent.
(People
v.
Lake,
12 N. Y., 358;
Carpenter
v.
Blake,
2 Lans., 206.)
In such a case, it is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, or as he can recollect and carry in his mind,
and thus form and express an opinion. His opinion maybe obtained by stating to him a hypothetical case, taking in some or all the facts stated by witnesses, and claimed by counsel putting the question to be established by their evidence, and when the question is thus stated, the witness has in his mind a definite state of facts, and the province of the triers, whether referees or jurors, is not interfered with. They will determine whether the facts exist which are thus assumed, and then give the opinion such weight as they think it entitled to, with a full knowledge of the facts upon which it is based. It cannot be said that the evidence elicited by this question was wholly harmless. The witness answered, three dollars per day for the whole period of six years. Other witnesses for plaintiff placed a higher value upon the services, and witnesses on the part of the defendants, a much lower value. The referee found the value to be two dollars per day. Hence it cannot be said that he was not influenced by the improper evidence.
For this error, the judgment must be reversed and a new .trial granted, costs to abide event.
All concur.
Judgment reversed.