Opinion
March Term, 1897.
Mills Bridge and George M. True, for the appellant.
Peter A. Delaney, for the respondent.
The plaintiff was permitted by the referee to recover for the value of her services from the 1st day of October, 1886, to the 20th day of October, 1895. I think this was error.
The money given to the plaintiff by the deceased, and which was apparently relied upon to take the claim out of the Statute of Limitations, was not made under such circumstances as to warrant the inference that it was a payment on account of the plaintiff's services or an acknowledgment of any debt due from the deceased to the plaintiff. ( Crow v. Gleason, 141 N.Y. 489.)
The plaintiff was acting as a general housekeeper and woman of all work for the deceased, and the moneys given by him to her can be as well inferred to have been given to her to meet the household expenses, as that they were in payment for services rendered. The testimony is very meagre and unsatisfactory, and wholly insufficient to base a finding that they were payments made by the deceased and received by the plaintiff in payment or part payment of the services rendered by her. For these reasons the recovery of the plaintiff should be limited to a period of six years prior to the death of the deceased.
The referee has apparently determined the value of the plaintiff's services to have been $180 per year, which for the term of six years would amount to $1,080, to which amount, with interest thereon from October 20, 1895, the recovery should be limited.
The referee also erred in awarding the plaintiff costs.
Section 2718 of the Code of Civil Procedure provides, where the claim is referred, as in this case, that in determining the question of costs, the referee shall be governed by sections 1835 and 1836 of the Code of Civil Procedure. Section 1836 provides that costs shall not be awarded unless the payment of the claim was unreasonably resisted or neglected. In this case it does not seem to me that payment of the claim was unreasonably refused; so far as appears from the record, the plaintiff never made any demand or request for payment of her claim, or any part of it, during the lifetime of the deceased; so far as the case shows, the first time that it was ever known that she claimed to have any account against the deceased was upon her presentation of the same to the defendant.
The claim presented was for the sum of $1,620, with interest from October 20, 1895.
Upon the hearing before the referee this claim was materially reduced; it cannot be said, it seems to me, that, under such circumstances, the refusal of the executor to pay was unreasonable. The judgment should, therefore, be further modified by striking therefrom the allowance of costs.
With the modifications above made, the judgment should be affirmed, without costs of this appeal to either party.
All concurred.
Judgment modified by reducing the amount of the recovery to $1,080, with interest from October 20, 1895, and striking out the costs therein allowed, and as so modified affirmed, without costs of this appeal to either party.