PARKER, P. J.: THIRD DEPARtment, June TERM, 1903. [Vol. 85. This action is brought to recover against his estate for services rendered by the plaintiff to John I. Winne during his lifetime. The services commenced in May, 1895, and were continued until his death in February, 1900. He was then eighty-seven years of age and the plaintiff was his grandniece and a young girl about nineteen years of age when she began to work for him. Her parents were both dead, and she was employed in a collar manufactory. At his request she left such employment and went into his family, where the services were rendered. In the claim which she made against his estate, and in the complaint in this action, she charges that such services were rendered as his "housekeeper, secretary and companion, and in nursing and caring for said Winne." Evidence was given upon the trial showing that she did render services during the time she was with him in each of such characters, and it is also apparent that he, during all of that time, treated her as a member of his family and as a relation. He was then living alone without wife or child, and the plaintiff presided at his table, entertained his guests, was, during a portion of the time after she first went there, sent to school by him, and seems to have taken the place of a daughter instead of acting as a mere servant. She undoubtedly expected to be compensated for the services which she rendered by a provision in his will. He made no will, however, and one of the issues litigated upon the trial was whether any direct promise had been made by the deceased to compensate her for the same. It was the contention of the administrators that, being a relative living in his family, the legal presumption was that such services were rendered gratuitously. Evidence had been given by a Mrs. Mitchell tending to show that the deceased had directly promised the plaintiff that when he died he would leave her enough so that she would not have to work thereafter. Criticism had been made by the defendants upon the accuracy and truthfulness of this evidence, and as bearing upon that question the court was asked to charge the jury that it was necessary for the plaintiff to rebut such presumption by a preponderance of evidence that is convincing and satisfactory, of an agreement to compensate, before she can be entitled to recover. The court replied: "I decline so to charge in this case, because I do not think that proposition of law applies to the evi App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. dence in this case." I can discover nothing in this case that withdraws it from the application of that well-settled rule. (15 Am. & Eng. Ency. of Law [2d ed.], 1083.) The refusal was clearly calculated to mislead the jury into the belief that the evidence need not necessarily be of that character, or else it amounted to an instruction that it was sufficient. For such reason it was error. The plaintiff was seeking to recover on a quantum meruit, and one of the issues presented to the jury was as to what the services were fairly worth. Much evidence was given to show how constant and severe they were, and she claimed that her health had been injured on that account. When Mrs. Mitchell was testifying as to what services she had seen the plaintiff render, she was asked what she had heard Dr. Holden say on one occasion when he was there prescribing for the deceased. She replied that "he said Mr. Winne ought to have a man nurse to take care of him; it was too much for one girl to do such work, it was injurious to her health and too hard for her." This evidence was received under the defendants' objection and exception, and a motion to strike it out was also denied and exception taken thereto. The proper and usual way to present to the jury Dr. Holden's views upon that subject would have been to produce him as a witness before them. This evidence tells the jury what he said about it. It does not distinctly appear that it was said to the deceased, or that he heard what was said. Certainly it is not pretended that he made any reply to it. And even though it was made in the plaintiff's presence, upon which fact the court laid stress, it amounts to nothing more than the declaration of the doctor, and its admission violated the familiar rule, that mere hearsay evidence is not admissible. Upon the trial the plaintiff introduced in evidence, under the defendants' objection and exception, the inventory of the deceased's personal estate, which had been filed in the surrogate's office, showing that it amounted to something over $20,000. It was also shown that he had a considerable amount of real estate. In his charge, the trial judge instructed the jury as follows: "And you have a right to take into consideration in measuring these damages the circumstances of the deceased; that is, the amount of property which he owned, his financial condition, because a man having large financial interests, banking interests, real estate, tene THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. ment houses and mortgages, should pay more reasonably and liberally for services of this kind than a poorer person would. You have a right to take into consideration those facts in making up your minds how much money she is entitled to, if she is entitled to anything;" to which an exception was duly taken. The respondent attempts to justify this charge by the case of Gall v. Gall (27 App. Div. 173). But in that case the services were rendered as a confidential agent and personal and business representative, and it was held that the extent and nature of the business which the plaintiff was required to manage was an importan factor in determining the value of his services, and the evidence was admitted for that purpose only. In this case the plaintiff does not appear as any such business manager. She does not claim it in her complaint, and although in the evidence there is an effort made to show that her services extended somewhat into that department, it can hardly be claimed that in addition to her duties as housekeeper, secretary and nurse, she also took charge of and had the responsibility of a manager and general representative of all of the deceased's business affairs. The services for which compensation is here sought are not at all like those rendered in Gall v. Gall, and hence that case is not at all an authority for the charge herein given. Moreover, the charge does not purport to be given to meet any such case. It plainly instructs the jury that a man of large wealth should pay more reasonably and liberally for services as house keeper, as a nurse and as secretary and companion than a poor man should. We can hardly sustain such a proposition as that. Without examining the other exceptions in the case I conclude that, for the reasons above stated, the judgment and order must be reversedAll concurred. Judgment and order reversed and new trial granted, with costs to appellants to abide event. App. Div.] In the Matter of the Petition of BYRON R. BREWSTER, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 28,566, Issued to FRANK L. HILLMAN, Respondent. Cancellation of a liquor tax certificate — what constitutes a use of property as a hotel March 23, 1896— what evidence establishes a subsequent abandonment of the use of the premises for hotel purposes — consents of property owners required. In a proceeding for the cancellation of a liquor tax certificate, one of the issues involved was whether the premises were, on March 23, 1896, occupied as a hotel within the meaning of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312, § 22). Upon this point it appeared that the building was built in 1892 by one Cummings, and was occupied by him until May, 1896; that during all this period there was a sign on the building designating it as a boarding house; that, although most of those who occupied the house were boarders at agreed prices by the week or month, Cummings received and cared for every traveler or transient guest that applied; that the building had the requisite number of rooms, and that no persons permanently dwelt therein other than Cummings' family and servants. During this period no liquor was sold upon the premises, and during a portion thereof Cummings maintained a grocery store upon the first floor. Held, that it could not be said that the building was not regularly kept open "for the feeding and lodging of guests; " That evidence that subsequent to March 23, 1896, Cummings leased a portion of the premises, not containing the requisite number of rooms, for hotel purposes and leased the rest of the premises, with the exception of the part which was occupied by himself, for general tenement purposes, established an intention on the part of Cummings to abandon the use of the premises as a hotel; That, in consequence of such abandonment, a certificate authorizing the liquor traffic to be carried on in the building could not be granted without the consents of property owners required by the Liquor Tax Law. APPEAL by the petitioner, Byron R. Brewster, from a judgment of the County Court of Essex county in favor of the respondent, entered in the office of the clerk of the county of Essex on the 9th day of February, 1903, upon the decision of the court dismissing the petition of the appellant for an order revoking and canceling the respondent's liquor tax certificate, and also from an order entered in said clerk's office on the 30th day of January, 1903, upon which said judgment is founded. The appellant, Brewster, petitioned the county judge of Essex county for the cancellation of a liquor tax certificate issued to THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. Frank L. Hillman, the respondent herein. In his application for the certificate, which was issued to him May 17, 1902, Hillman stated that there were several parties dwelling within 200 feet of the place where he proposed to sell the liquor, and that he had not obtained their consents to such certificate's issuing. But he stated that such premises were actually occupied as a hotel on March 23, 1896, when the law was passed, and that, therefore, he was excused from obtaining such consents under the provisions of subdivision 8 of section 17 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312). He also stated that such premises had been continuously occupied as a hotel since that date. Brewster claimed that such premises were not then nor had they since been occupied as a hotel, and that, therefore, the certificate to Hillman was improperly issued. Certain other objections were taken by him to the validity of the certificate, all of which were overruled by the county judge, and, after a hearing, an order and judgment was entered dismissing his petition, with costs. From such order and judgment he has taken this appeal. Francis A. Smith, for the appellant. A. W. Boynton, for the respondent. PARKER, P.J.: The first question presented is whether, on the evidence, the premises were so occupied on March 23, 1896. The answer turns upon whether the use to which such premises were then put constituted them a hotel or a mere boarding house. I am inclined to think that the definition of a hotel, as given in the statute itself, should control in this case. If the building in question was then "regularly used and kept open as such for the feeding and lodging of guests," and there were, at least, six furnished bedrooms for their occupancy therein, and there were no dwellers therein other than the family and servants of the hotelkeeper, it was a hotel within the meaning of the statute. See section 31 of the Liquor Tax Law, as amended by section 22 of chapter 312 of the Laws of 1897. Cummings, who built the building in 1892, and who himself occupied it until May, 1896, testified that there were then more |