Eidinger

This is an appeal from the order granting the defendant a new trial.

The action was for the recovery of compensation for alleged personal services rendered by the plaintiff for the defendant’s intestate during the lifetime of the latter.

The complaint alleges, and the evidence shows, that the deceased, in the month of December, 1905, was stricken with paralysis, and that he continued to suffer from that malady until the date of his death, on the twenty-ninth day of July, 1908. It is averred' that the plaintiff, “at the special instance and request of the deceased,” performed “work, labor and services in nursing, tending and waiting upon” deceased from the time he was taken ill until his death; “that said labor, work and services so performed in nursing, tending and waiting upon said August Eidinger were and are reasonably worth the sum of five dollars per day for each and every day thereof; and that seven hundred and thirty days of said labor, work and services were performed and rendered to the said August Eidinger within two years next preceding the commencement of this action.”

Plaintiff presented Ms claim in due form to the executor of the will of the deceased, and the same…