This is the third appeal in this case, and the law pertaining to it has been substantially settled. There is evidently no desire on the part of the trial justice before whom this case has been tried three times to take into consideration the decision of this court.
The case is a very simple one. The plaintiff was the only wit- • ness called; the defendant offered no evidence whatsoever, and the plaintiff’s testimony is wholly unimpeached. She testified that she was employed by defendant as a trained nurse at twenty-five dollars a week, from August 20 to September 13, 1900, but . that she was actually at work for defendant at defendant’s residence for five days; that she was in defendant’s employ and subject to her call from August twentieth to September eighth, when she received a telephone call and went to defendant’s house. There can be no question from the evidence but that the defendant employed the plaintiff during the entire period of time from August twentieth to September thirteenth. The learned trial justice, however, dismissed the complaint for the- reason, so far as we can ascertain from the record, that he interpreted the complaint as for a breach of contract, and held that no breach had been established. The plaintiff, however, alleges in her complaint that she. was on or about the 9th of August, 1900, employed by defendant as nurse from August 20, to September 13, 1900, and that she rendered to the defendant her services during that period, so that, so far as the reasons assigned for the dismissal are concerned, it cannot be sustained, nor can it be sustained for any other' reason.
There is one feature of the case which, in our opinion, may properly be noticed. The defendant, by her answer, admitted her liability for seventeen dollars and eighty-five cents for five days’ services from September eighth to September thirteenth, and alleged a tender but failed to make the tender in court. Upon the first appeal (33 Misc. Rep. 780) this court held that this tender *793was not available, because not kept good by a payment in court, and the plaintiff was clearly entitled to a judgment for at least the amount admitted by defendant’s answer to be due.
Upon the second appeal (35 Misc. Rep. 818) this court, in effect, reiterated this decision, and held further that the tender which defendant was required to make in addition to the sum concededly owing to the plaintiff must include the costs of the successful appeal and the disbursements and costs paid below on the first trial. Before going into the third trial the defendant tendered into court the sum of seventeen dollars and eighty-five cents, conceded by her answer to be due (without interest, however), and the sum of fifty-three dollars, the disbursements and costs of the first two trials, but not the costs of either the first two appeals. This was clearly an insufficient tender, as the court has held upon the second appeal of this case, but the question of the sufficiency of the tender is not important, for in our judgment the plaintiff established her claim to the full extent alleged in her complaint.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event, and the new trial should be had in another district to be designated in the order.
Freedman, P. J., concurs.