3 Barb. 115 | N.Y. Sup. Ct. | 1848
j&y the Court,
The plaintiff worked for the defendant from March, 1837, to some time in the year 1841. The testimony does not give the exact dates; not are they at all material to the questions discussed on the argument. It is clear that the plaintiff was a minor during the whole time, and that his father was then living. The father had some agency in the bargain for the son’s services when he commenced working for the defendant,, and in a settlement made for the work in 1838. The plaintiff, probably at the instigation of the father, then purposed to quit, and went some distance with his father, who was apparently about leaving the place, but returned immediately, and resumed his labor with the defendant. The father does not appear to have taken any part in the son’s engagements, after this return, but apparently left him to manage for himself. It does not appear that he ever demanded any compensation for the plaintiff’s services, after the brief interruption in 1838, nor that he subsequently, in any manner, contrib-
Parents are under an obligation to support their children and are entitled to their services during their minority. But, says Chief Justice Savage, in McCoy v. Huffman, (8 Cowen's Rep. 85,) “ although the father is entitled to the services of his children till the age of twenty-one, yet he may waive that right. (Burlingame v. Burlingame, 7 Cowen's Rep. 92.) He may emancipate his child, or the child may, by the father’s consent, be entitled to his own services.” So also it Was remarked by Sutherland, J. in Shute v. Dorr, (5 Wend. Rep. 206,) that “ Such intention of the parent may be inferred from circumstances, and when the circumstances of any particular case warrant the conclusion that it was understood that the child might receive his earnings, payment to him will be good.” We subscribe fully to thése sentiments, as being just and reasonable. The reason why patents are entitled to the services of their minor children, usually given, is that which I have already mentioned — the liability to support them. But in my opinion a much stronger reason, and one much more consonant with the feelings and obligations of parent and child, is, that it gives the parent tire control over the actions of his children when they are incapable of judging for themselves, and thus has a tendency to save them from the effects of idleness or imprudence. But'when á parent, from confidence in his minor child, or, as is sometimes, although I hope not often, the case, from indifference as to his welfare, allows the child to manage for himself, and to obtain his support from his own industry, the reasons for the rule fail, and the rule falls with them.
The conclusion. to which the referees in this cause came,
The defendant objected that some of the evidence adduced by the plaintiff, to prove such absence, was hearsay only. Continued absence was not proved by hearsay. That was established by the direct evidence of persons residing in the place, and the absence of any direct evidence by the defendant,- to the contrary. But an attempt was made to prove, by such evidence, the residence of the plaintiff's father in Canada. That was not at all material. So long as he was absent from the place, it matters not where he was. I am inclined to think, however, that the evidence was admissible. The question as to a man’s place of residence is of a public nature, and when such residence is in a foreign country it is difficult to procure any direct testimony on the subject. Both are reasons for the admission of hearsay evidence. (1 Stark. on Ev. 54 to 60.) If, however, the father resided in the same place¿ and neither received nor claimed any wages for his son’s services for so long a period, the inference would be strong that he intended that they should be paid to the son. If any demand had been made by the father it must of course have been known to the defendant, and might, and would have been proved by him.-
The defendant’s counsel insisted, on the argument, that the-referees erred in permitting the question to be put to the witness John Cuthill, whether the plaintiff had not subsequently^ and during his minority, himself made a contract to work with the witness? If the question had stood alone, it would have been inadmissible, but taken in connection with the facts that-the plaintiff subsequently, while still a minor, worked for the witness a year and received pay for his services, the whole went to show that the son was working for himself, without objection
The motion to set aside the report of the referees is denied.