Conger v. Van Aernum, 43 Barb. 602

Conger v. Van Aernum

43 Barb. 602 | N.Y. Sup. Ct. | 1865

By the Court,

Marvin, J.

Upon the argument the defendant’s counsel made two points : 1. That the relation which the plaintiff maintained, previous to his marriage with the defendant’s daughter, as the hired servant of the defendant, was merged in the other relation of son-in-law; and that the defendant had a right to presume that the plaintiff remained with him as a son, instead of a hired servant. 2. If the plaintiff is entitled to receive compensation for his services, then he is bound to pay the defendant a reasonable compen*605sation for the board and clothing ofdiis children. There was evidence, upon the trial, tending to prove the value of such board and clothing, and also the value of the services of the wife, and her board and clothing. The referee, in his opinion, and the counsel in their arguments, refer to Robinson v. Cushman, (2 Denio, 149 ;) Williams v. Hutchinson, (5 Barb. 122;) and Dye v. Kerr, (15 Barb. 444.)

Robinson v. Cushman has little or no application to the present case. In Williams v. Hutchinson the plaintiff was the infant son of a widow who married the defendant. He became a member of the defendant’s family, as one of the children, and was fed, clothed and schooled as such, and he labored upon the farm until he was about seventeen years old. It was held that the defendant stood in loco parentis to the plaintiff, and that this repelled all presumption of service for him, or wages, and rendered an express promise indispensable to the maintenance of an action.

In Dye v. Kerr, the claim was by a daughter, against her father’s executor, for thirty years’ services. The service was. rendered without any agreement for compensation. She lived with her father, as a member of the family, and as such was taken care of.

In the present case a new relation intervened. The daughter of the defendant, and the plaintiff, intermarried. From that time the plaintiff was undoubtedly entitled.to the services of the daughter, then become his wife, and he was bound to support her and her children. The question,, however, would arise, in the absence of a special agreement,, whether the circumstances justify the implication of a promise by the father to pay for the services of the wife-daughter, and a promise by the husband to pay for the boarding and' clothing of the wife and children.

The referee has found that “there was never any agreement or understanding that the defendant should pay any thing for the services of his daughter, or receive any thing for her.board or.clothing, .or. for the .support of her children.” *606This finding is broad, and includes any agreement, express or implied, and so I think the referee intended. I have looked into the evidence, and am satisfied with this finding. I think, from the evidence, that there was no intention by either of the parties that there should ever be an accounting for the services of the plaintiff’s wife, and the board and clothing of herself and the two children, one five and the other three years old, when the plaintiff ceased working for the defendant. The wife continued to discharge the duties of a daughter to the defendant, as also that of a wife to the plaintiff. No accounts were kept; and if there had been, it is not quite clear to my mind, from the evidence, upon which side the balance would have appeared. The defendant’s wife was in poor health most of the time, and it appeared that the plaintiff’s wife was the principal house-keeper, and rendered valuable services. They were probably quite equal to what she and her children received from her father. The plaintiff claimed compensation for her services ; the referee disallowed the claim, and the plaintiff has not appealed. He acquiesced in this decision. The defendant, however, appealed, and tnow claims compensation for the board and clothing of his daughter’s children; that is, unless the claim of the plaintiff, for his services, is disallowed. In my opinion the claims touching the wife and children should be considered together ; and I am satisfied with the disposition of them made by the referee.

The claim for the plaintiff’s own services is now to be considered. The referee finds that in March, 1852, the parties agreed for the services of the plaintiff for eight months at $12 a month, and that he continued to labor until about March 1, 1860, without any other agreement being made between the parties, relative to the compensation which the plaintiff should receive for his labor and services ; and that such labor and services were worth, over and above his board, $160 a year. By allowing this sum, less what the plaintiff had received, the referee has found an implied promise to pay *607xvhat the services were reasonably worth. And with the finding and decision of the referee I am entirely satisfied. The relation between.the plaintiff and defendant was not such as to negative the presumption that compensation was expected and intended by both the parties. Indeed there is much affirmative evidence in the attempts of the parties to settle, &c. tending to prove that compensation for his services was expected by both parties. The plaintiff was of mature age, a young married man, during most of the nine years. He appears to have been industrious and economical, having the principal charge and superintendence of the farm. He was following the example of other young men in this country, laboring by the month or year, for a period, for wages, with a view to the accumulation of capital with which to set up for himself. The cases above cited are not analogous ; nor is Williams v. Hutchinson, (3 N. Y. Rep. 312,) and the cases therein cited.

[Erie General Term, May 2, 1865.

The judgment should be affirmed.

Grover, Daniels and Marvin, Justices.]