Baertz v. Krueger

(dissenting). Both parties are women. On the trial the plaintiff was represented by counsel; the defendant had none. The pleadings were oral. That of the plaintiff was, “Wages of a female employé other than domestic.” No evidence was given to support this. Some testimony there was as to services rendered and money expended for the defendant, but that would or should have been excluded on objection. Keister v. Rankin, 29 App. Div. 539, 51 N. Y. Supp. 634. Judgment was rendered in favor of the plaintiff for all she claimed. When the plaintiff stopped, the defendant was questioned by the court as to her indebtedness to the plaintiff. She was not asked" to state her “counterclaim,” the substance of which came out incidentally -during the questioning by the court. She was cross-examined by the plaintiff’s counsel, but no one suggested that she should cross-questian the plaintiff or the witnesses whom the plaintiff brought as in rebuttal, and who, like herself, were allowed to testify as to matters not in rebuttal, and even outside of the case. The defendant said she had nursed the plaintiff, and that the plaintiff had agreed to pay her a specific price. There was some contradiction as to the arrangements for the services rendered the mother and sister, but the plaintiff admitted having received from the defendant upon some occasions substantially the treatment for which she claimed,—massage,— given at the defendant’s place of business, but she denied the agreement as to price, adding that no bill had been sent her, and that she •did not know the price. No reference was made in the judgment to the counterclaim. Under the circumstances, some one—either the justice himself; mayhap even the counsel of the plaintiff, for his papers bear the imprint of a benevolent society of high repute—well might have suggested to the defendant either that she should have counsel if she was to be held so strictly to the rules of pleading, which the plaintiff was not, or that she should offer evidence under a quan"tum meruit, novel as that phrase would probably have been to her; -at least that she should prefer the conventional motions and requests -on the resting of the plaintiff and the close of the whole case. No -assistance of this sort was offered, but, after the plaintiff and her *1056sister had finished with their so-called “rebuttal,” including a new statement of the case, the plaintiff’s counsel was allowed to recall the defendant, and endeavored to show that the nursing and treatment of the plaintiff were in contravention of a provision of the public health law respecting practice in medicine. The attempt failed. Although our statute does not contain the salutary rule of a venerable and respected foreign procedure requiring that in courts of inferior jurisdiction, peculiarly the resort of the poor and the unlearned, the trial may not be proceeded with before that the justice has made an attempt at conciliation, or that the parties have voluntarily appeared for that purpose. There is recognized in long practice a duty on the part of such magistrates to explain the rights and remedies to persons who are not represented by counsel, especially when such persons are women.

In furtherance of justice, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.