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Walters v. Mayhew

8 N.Y.S. 771 Court N.Y. Gen. Term English

Delivered by Hardin, P. J.

Contents

Majority

p. 771
Walters v. Mayhew.
(Supreme Court, General Term, Fourth Department.
February, 1890.)

Headnote

Master and Servant—Proof of Employment.
In an action for services rendered by plaintiff to her deceased grandfather, dec. larations of decedent that plaintiff “had not been paid, but should be paid, ” are admissible in connection with the evidence of the original request for such services.
p. 772
Appeal from surrogate’s court, Oneida county.
An action by Cora M. Walters against Mortimer M. Mayhew, executor, etc., of Merchant M. Mayhew, plaintiff’s deceased grandfather, to recover for services rendered testator in his life-time. The plaintiff presented her claim to the defendant as executor, who served a notice in writing, stating that he “doubted the justice and validity of such claim,” and offered to refer the same. Thereafter an agreement to refer was made and entered into, whereby the matter in controversy was referred to a referee; and on the 13th of March, 1889, the surrogate of Oneida county approved of the referee named. Proceedings were noticed for hearing before the referee, and regularly heard by him; and the case contains all the evidence given in the proceeding, and all the exceptions and proceedings before the referee. The referee’s report awards to the plaintiff $53.78 damages. From the judgment thereon defendant appeals.
Argued before Hardin, P. J., and Martin and Merwin, JJ.
Richard W. Mclncrow, for appellant. Goodier & Wolcott, for respondent.

1. This case does not fall within the rule that the law will not imply a promise to pay for services where a party stands in loco parentis. Williams v. Hutchinson, 5 Barb. 124 , affirmed 3 N. Y. 312 . When the referee considered the request of the testator for the plaintiff’s services, communicated to plaintiff at his request, and upon which the plaintiff acted and relied, together with all the incidents attending the services, and the declarations of the testator in relation to the services, and payment and settlement therefor, in connection with the evidence, offered by the defendant in respect, to the same, he was called upon to determine the questions of fact thus presented. We have carefully looked into the evidence, and given the report of the referee such influence as it properly deserves, and are of the opinion that his conclusions should be sustained. We think the evidence was sufficient to. warrant the finding that the plaintiff performed the services under, and in expectation on her part of compensation, and under a promise on the part of the testator to make compensation therefor. Thornton v. Grange, 66 Barb. 507 ; Robinson v. Raynor, 28 N. Y. 494 . The evidence supports the finding as to the value of the services rendered; and, although the defendant’s evidence tended to belittle the services of the plaintiff, we think the referee was, right in allowing $10 per week for them.

2. We think the evidence given of the declarations of the testator that, plaintiff “had not been paid, but should be paid,” was admissible, and properly received, to be considered in connection with the evidence of the original request for such services, and the details in respect to the performance of them. As Bronson, C. J., said in Robinson v. Cushman, 2 Denio, 155 : “It. was not a conclusive admission, and must not be considered alone, but with other evidence in the case.” In Chilcott v. Trimble, 13 Barb. 509 , after consideration of such admissions, it was held not to be sufficient to establish a cause of action; but nothing was said in that case against the admissibility of such evidence. That case does not, therefore, avail the appellant. We have looked at the other rulings made by the referee, and find nothing in them requiring a disturbance of his report. The orders and judgment should be affirmed, with costs of this appeal to the respondent. Denise v. Denise, 110 N. Y. 563 , 18 N. E. Rep. 368 . Judgment and orders affirmed, with costs, of the appeal to the respondent. All concur.

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