28 N.Y.S. 273 | N.Y. Sup. Ct. | 1894
This action was brought upon a promissory note, of which the following is a copy:
$10,000. Looneyville, August 1, 1889.
In consideration of valuable services rendered to me, I promise to pay my niece, Margarett A. Root, or order, ten thousand dollars, at or after my decease. Collins Woodruff.
The above note executed by me, and delivered to my niece, Mrs. Margarett A. Root, of Looneyville, New York, I do hereby declare to be given to compensate her for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my homo with, her, at her residence, in Looneyville; & I deem the amount of said note-hut a just and adequate compensation for all her long-continued services, kindness, & devotion to me, in sickness and health, during my life.
Dated August 1, 1889. Collins Woodruff.
Witness:
Chester A. Root.
Margarett A. Root.
Margarett S. Root.
Henry McDermitt.
As to whether the finding of the jury is against the weight of evidence, we do not think the question is before us for consideration. Much of the testimony of the expert witnesses has been omitted from the case, and none of the exhibits with which they made comparisons were produced before us. We, consequently, are not in a position to consider the evidence, or to determine the weight or the effect it should have upon the verdict.
It is contended that the note is invalid, the defendant claiming that there is an inadequate consideration to support it. The note itself recites the consideration “of valuable services rendered.” The instrument which follows ' fc declares it to be given to compensate the plaintiff “for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my home with, her, at her residence, in Looneyville.” In Carnwright v. Gray, 127 N. Y. 92, 27 N. E. 835, it was held that an instrument by which the signer agrees to pay to another a sum certain at a time specified after his death, is a valid promissory note; that it is not necessary to its validity that a consideration be expressed therein, or proved in an action thereon; that the instrument imports a consideration, and the burden of showing a want thereof is upon the defendant. Has the defendant in this case shown a want of consideration? The testator, at the time of making the note, was aged, and in feeble health. He had no children, and his wife had died some years before. The plaintiff was the niece of his wife. It is apparent from his letters that he regarded her with much affection," and that he had on various occasions visited her at her home, and there remained several weeks at a time. The evi
It is further contended that the plaintiff had no right to receive compensation for her services; that her services belonged to her husband; and that he, alone, was entitled to the compensation,— and in support of such contention the defendant calls our attention to Blaechinska v. Howard Mission, 130 N. Y. 497, 29 N. E. 755; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Coleman v. Burr, 93 N. Y. 17. But it does not appear to us that these cases are in point. The plaintiff’s husband stood by, and saw Woodruff pay the plaintiff for the services she had rendered. He subscribed the instrument by which the payment was made. He thus acquiesced in the payment to his wife, and thereby surrendered to her any right thereto which he might have had. This view renders it unnecessary to enter upon a consideration of the relation existing between husband and wife as to services rendered by her. These questions have been considered by this court in the cases of Burley v. Barnhard, 9 N. Y. St. Rep. 587, and Stamp v. Franklin, 12 N. Y. Supp. 391.
We have examined the exceptions taken to the admission and rejection of evidence, but find none which we think requires a new trial. The judgment and order appealed from should be affirmed.
DWIGHT, P. J., and LEWIS, J., concur. BRADLEY, J. not sitting.