Wilsey v. Franklin — 32 N.Y. St. Rep. 711

Majority

p. 711

Anne C. Wilsey, Resp’t, v. Frederick W. Franklin, Jr., et al., Ex’rs, App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Sreyices — Members of same family.

Claimant was a daughter of deceased, but had left home on her marriage and remained away until requested by deceased to come back and take care of her. She did so and remained fifty weeks, doing the work of nurse, housekeeper and servant, and then left and never afterwards lived with her. Deceased was helpless, exacting and hard to please, and had quarreled with claimant upon her marriage. Held, that this was not a case of services performed by one member of a family for another, and that the referee was justified in finding that the services were to be paid for.

Appeal from judgment allowing a claim for services rendered to the claimant’s mother, entered upon order confirming the report of a referee appointed under the statute.

Henderson Benedict, for app’lts; H. G.M. Ingraham, for resp’t.

The claimant is a daughter of deceased, and Tier claim is for personal services rendered to her mother. The question is whether the parties lived together and the services were rendered by one member of the family to another, or whether the services were to be paid for.

Deceased was a widow, over eighty years of age and quite helpless. The claimant had left her father’s family upon her marriage in 1872. Her husband died in 1879 and after his death she lived in different places, and in March, 1881, she was living in Boston. Upon the death of the husband of deceased, she was left alone and she requested her son, Stephen Dixon, to request her daughter, the claimant, to come on from Boston and take cáre of her. Upon this request she came on from Boston and took care of her mother for fifty weeks, when she left the family of deceased and never afterwards lived with her mother.

The referee under the evidence was justified in finding that the services were to be paid for. The mother was helpless and from her age would probably continue to be so. Her husband was dead and she was left alone. She was exacting and hard to please. “It was a thankless task to serve her,” says one_ of her children. She had quarreled with the claimant upon her marriage, and this estrangement had continued until after her husband’s death. Under this state of facts she directs her son to write to the plaintiff and convey to her the request of her mother, that she should come on and aid in the housekeeping.

The case is not one where a child continues with her mother after becoming of age. The claimant had for years ceased to be a member of the family and she only went back to live upon her mother’s solicitation and then to do the work of nurse, housekeeper and servant. The plaintiff went upon the understanding of the mother, “that she could come there with her and stay for a while.” The employment was fully proven, and the usual inference of a promise to pay should apply to it.

Ueither party could have expected such services as were ren

p. 712

dered by the claimant to her mother would be gratuitously rendered.

Assuming a right of recovery, the amount of the claim is not complained of.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.