McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.
Plaintiff appeals from a judgment of dismissal entered on defendant's motion made at the close of plaintiff's case. Defendant is the executor of the estate of Felice Cerria. The complaint is in two counts, the first seeking judgment of $10,000 for services rendered plaintiff's father-in-law and mother-in-law, Felice Cerria and Maria Cerria, in their lifetimes, and the second $440 for monies spent for special foods, brandy and doctor bills for Felice Cerria.
There was no proof of any specific out-of-pocket expenditures made by plaintiff on Felice Cerria's behalf. The second count was properly dismissed. However, the judgment of dismissal must be reversed as to the first count.
The County Court considered the first count as in effect setting up two causes of action, one based on an agreement to compensate plaintiff for her services by leaving her a share of real estate by will, and the second based on a quantum meruit. Although the first count refers to a promise to pay plaintiff by devising a share of property to her and her husband, it is cast in the mold of quantum meruit. If it is to be sustained, at least for the purposes of this appeal, it must be on that theory.
The testimony establishes that soon after her marriage in September, 1933 to Frank Cerria, son of Felice, plaintiff
began going to the apartment of her in-laws where she did the housework, shopped for the couple, cooked their meals and acted as their practical nurse. The mother-in-law was then 60 years old, a heavy woman and suffering from longseated asthma which became progressively debilitating. The father-in-law was 64, weighed 240 pounds, and suffered from rheumatism. In 1947 he developed heart trouble and then dropsy. Plaintiff went to their home daily, leaving her own place in the morning and caring for them and their needs through the day. She tended them until February 1, 1948, when the mother-in-law said she no longer needed her services. Maria Cerria died soon after, on June 15, 1948. There was some evidence tending to show that plaintiff took care of the father-in-law for some months after he was confined to bed and preceding his death on January 21, 1951.
Proof of plaintiff's services is found in the testimony of her husband Frank, her son Philip, and a friend Mazie Tronolone, who visited the in-laws' residence frequently. The physician who attended Felice Cerria after he had his heart attack in April, 1947, testified that he had recommended the need of a practical nurse and that the patient suggested plaintiff who had been very attentive to him up to that time. The doctor saw no one but plaintiff in the Cerria home on his visits there down to October, 1949.
Plaintiff's son testified that on many occasions Felice Cerria had said in his mother's presence that she had been good to him and his wife and when they died he would leave her a share of his property, and that plaintiff had said "All right." Mazie Tronolone's testimony was to the same effect; the father-in-law had several times said in plaintiff's presence that he would leave her and his son a share for the good done to him and his wife Maria. To his son Frank decedent said: "What are you worrying about? When I die I am going to leave a will for your wife for the work she is doing. I am going to leave you a share in the property." On another occasion he said: "I haven't got the money, but I will take care of you and your wife in the will."
By his last will, dated January 8, 1951, Felice Cerria left nothing to plaintiff, one dollar to his son Frank (her husband), and the residue of the estate to his daughter Angelina. The residue expressly included his Hoboken home, which he and his wife Maria had owned by the entirety. It was the only real property of which he died seized.
Defendant in his answer contends that (1) since plaintiff was a daughter-in-law, any services rendered decedent and his wife were rendered without expectation of compensation and solely for their mutual comfort and convenience, and (2) any services furnished were furnished gratuitously. The proofs fail to sustain the argument.
A similar contention was advanced in Stone v. Todd , 49 N.J.L. 274 (Sup. Ct. 1887), where the decedent's brothers and sisters sought to defeat the plaintiff housekeeper's claim for services, claiming she had rendered them on the mere ...