51 A.D.2d 636 | N.Y. App. Div. | 1976
Appeal from a judgment of the Supreme Court, entered April 25, 1975 in Greene County, upon a verdict rendered at a Trial Term in favor of plaintiff. Plaintiff instituted this action against the executors of the last will and testament of Edward Vogel. Basing her suit upon an alleged oral contract between herself and Vogel, she claimed that decedent promised her that she would be compensated and taken care of for the rest of her life in return for work, labor and services, such as nursing care, cooking, cleaning, marketing and similar tasks, which she performed for decedent from July 1, 1951 until his death on December 24, 1971. In her complaint, plaintiff sought damages in the sum of $40,000, the alleged reasonable value of her uncompensated endeavors for decedent, and a verdict was subsequently rendered in her favor in the sum of $30,000 following a jury trial. On this appeal, defendants first contend that the instant action was barred by the Statute of Frauds because there was no proof of either an agreement or a note or memorandum thereof being in writing (see General Obligations Law, § 5-701, subd 1; EPTL 13-2.1, subd [a], par [2]). We disagree. Since there was no evidence that the alleged agreement was for either a set term or the remainder of decedent’s life, we must assume that it was terminable at will, (Howes v Peckham Road Corp., 14 AD2d 940; Conrad v Golden, 275 App Div 946; 10 NY Jur, Contracts, § 412), and, therefore, without the Statute of Frauds. Of prime importance is the fact that the agreement could possibly have been performed within one year, even though it was susceptible of indefinite continuance and actually extended over 20 years until decedent’s death (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Warren Chem. & Mfg. Co. v Holbrook, 118 NY 586). We also find without merit defendant’s contention that, in view of the six-year Statute of Limitations applicable to contract actions (CPLR 213, subd 2), it was reversible error for the trial court to admit testimony regarding plaintiff’s service to decedent more than six years prior to his death. At the trial, plaintiff submitted a memorandum which maintained that defendants were estopped from asserting the Statute of Limitations as a defense because of decedent’s inequitable conduct toward plaintiff, and, as a result, the challenged testimony was admitted, subject to being stricken should it develop that defendants were not so estopped. Thereafter, the court ruled that there was no estoppel involved and explicitly charged the jury that, should it reach the question of damages, it was to consider only the time from December 24, 1965 to December 24, 1971. In our opinion, these actions by the court removed any possible prejudice to defendants resulting from the admission of the testimony. Similarly, we will not disturb