Walters v. Mayhew — 30 N.Y. St. Rep. 46

Majority

p. 46

Cora M. Walters, Resp’t, v. Mortimer M. Mayhew, Ex’r, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 15, 1890.)

Headnote

1. Services—Implied promise to pay—Parent and child.

In a proceeding to enforce a claim for services against an estate disputed and referred under the statute, it appeared that the services were for nursing plaintiff’s grandmother. Plaintiff lived on a farm at some distance from her grandfather and grandmother, and went to do the nursing by the grandmother’s request. The grandfather, the testator, had frequently promised to pay plaintiff for the services. Held, that the case was not one-of those where the law will not imply a promise to pay for services because the party stands in loco parentis.

2. Same—Evidence.

Declarations of the testator that plaintiff had not been, hut should be, paid were properly received. Such declarations are not conclusive, but are to be considered with other evidence.

p. 47

Appeal from a judgment entered upon the report oí a referee in Oneida county, and from an order refusing to set aside said report, and from an order confirming the same.

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.

Richard W. Mclncrow, for app’lt; Goodier & Wolcott, for resp’t.

This case does not fall within the rule that the law will not imply a promise to pay for services where a party stands m loco parentis. Williams v. Hutchinson, 5 Barb., 124 ; S. C., 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 ten dollars 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, 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

p. 48

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. Y. State Rep., 873.

Judgment and order affirmed, with costs of the appeal to the respondent.

Martin and Merwin, JJ., concur.