45 N.Y.S. 723 | N.Y. App. Div. | 1897
This became an action on the entry of the order referring the matter upon an agreement of the parties in relation to a claim exhibited by the plaintiff, pursuant to the statute. Code Civ. Proc. § 2718. The claim as presented was against the estate of Benjamin F. Constable, deceased, for the board and support of Mary Doughny from July 13, 1886, to February, 1896,—497 weeks, at $5 per week, $2,485; reduced, by credit of cash $612, to $1,873. It appeared that prior and up to July, 1886, Mary Doughny .had been a servant in the family of the defendants’ testator for more than 30 years. Then, having become feeble, she became a boarder of the plaintiff, and remained with the plaintiff in that relation until she died, in April, 1896. The husband of the plaintiff testified that Mary Doughny became a boarder with the plaintiff upon the agreement between her and the decedent that he would pay her for such board five dollars per week during the lifetime of Mary; that he made some payments, at the rate of three dollars per week, up to August, 1890; and that nothing was paid after that time. The testator died in April, 1895. The only explanation given for the payment at that rate is in the testimony of the same witness, to the effect that in 1888 the decedent said to him that he was a little short of money, and would pay the plaintiff if she could wait for a time, and that he '(vould pay for Mary’s board as long as she lived. Another witness, who prior to and after 1886 was in the milk business, and delivered milk to both places, testified that, after Mary went to board with the plaintiff, he, on several occasions, carried to the plaintiff money sent to her by the decedent, in sums of $12 each,—at that rate a month for a long time. This constituted the evidence.
The result given by the report of the referee was that the plaintiff was entitled to recover for board of Mary Doughny for the period from August, 1890, to February, 1896, at the rate of $5 per week, amounting to $1,415. The fact (so treating it) that the testator paid at the rate of $3 per week up to August, 1890, and thereafter, during his life of nearly five years, paid nothing, casts some doubt upon the entire correctness of the evidence that he agreed to pay $5 per
The judgment and order should be affirmed. All concur.