Markey v. Brewster — 17 N.Y. Sup. Ct. 16

Majority

p. 16

SARAH MARKEY, Claimant, Appellant, v. EUGENE A. BREWSTER, Executor, etc., Respondent.

Headnote

Services rendered by one member of a family p another — recovery for — when proper.

Defendant’s testatrix being taken sick, sent for tlie plaintiff, ber daughter, who had a family of ber own, with whom she resided, to come and take care of ber. Plaintiff accordingly left her home and resided with and took care of the deceased for nearly four years, during which time the deceased frequently said that the plaintiff should be well rewarded therefor.

In an action brought to recover the value of such services, after the death of the testatrix, held, that it was not to be classed with the ordinary cases of services rendered by one member of a family to another, and that plaintiff was entitled to recover.

Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee.

Tbe action was brought by tbe plaintiff to recover tbe value of services rendered by ber in nursing and taking care of ber mother, tbe defendant’s testatrix.

Shafer <£ Hill, for tbe appellant.

Walter O. Anthony, for tbe respondent.

Tbe deceased was tbe mother of tbe plaintiff, but tbe plaintiff bad a family of ber own, and lived with ber family some miles from tbe deceased. Tbe deceased, on being taken sick and helpless, sent for ber daughter, tbe plaintiff, to come at once and take care of ber. This was in 1869. Tbe plaintiff substantially gave all ber time to nursing and taking care of ber mother for tbe four years following. Tbe deceased is proven to have repeatedly said during those four years “ that plaintiff should be well rewarded; ” “ that she should receive a fair compensation or reward for ber ser•vices; ” “ that she (deceased) would see she (plaintiff) was well paid for it (her services); ” “ that she intended to see tbe claimant paid; ” “ that she shall be well paid for it.” Some of these declarations were made in tbe presence of plaintiff. There is nothing in tbe evidence tending to show that such compensation to plaintiff was to be made by will. Proof was offered by plaintiff to show that she received nothing under tbe will of tbe deceased, which was excluded. If such bad been tbe understanding, and tbe same bad not been complied with, an action at law for tbe value of tbe services could have been maintained. (Robinson v. Raynor, 28 N. Y., 494 .) In tbe absence of proof showing a design to compensate by will, we think tbe action sustainable. Tbe plaintiff was not a member of tbe family of deceased at tbe time of ber employment by deceased. She was hving in ber own household. She never legally ceased to be a member of ber own household, although absent at ber mother’s, under ber mother’s employment. Tbe deceased repeatedly promised plaintiff should be paid. This case is not one to be classed with those cases where tbe services are to be gratuitous, as having been rendered by one member of tbe same family and household for another.

Judgment reversed and new trial granted, costs to abide event.

Gilbert and DyKMAN, JJ., concurred.