Thornton v. Grange, 66 Barb. 507

Thornton v. Grange

66 Barb. 507 | N.Y. Sup. Ct. | 1873

By the Court,

Mullin, P. J.

Should a daughter go to live with her father, at his request, and there was no agreement whatever as to wages, it would be presumed that she went to live with Mm not as a servant, but as a member of Ms family, without compensation, except such as a parent ordinarily gives to Ms children. (Robinson v. Cushman, 2 Denio, 149. Dye v. Kerr, 15 Barb. 444.) When, however, the person taken into the family is not a child, but a more distant relation, the presumption of serving without pay is less strong, and slight circumstances will be sufficient to overcome it. (Robinson v. Raynor, 28 N. Y. 494.) Several of the plaintiff’s witnesses testify to conversations with the intestate in which he conceded the plaintiff’s right to compensation ; and it would seem that $400 at least had been paid to her towards her wages.

It is‘proper to say that the plaintiff does not say as a witness that she had been paid anything toward her *510wages. This subject the plaintiff could not inquire into, as she was not permitted to testify to any transaction between her and the intestate; but the defendant was not restrained from entering upon the inquiry, and failing to show that the $400 had been received as wages, and taking the benefit of the plaintiff’s admission that so much had been paid, the referee was justified in assuming that $400 had in fact been paid to her.

The referee has found, in opposition to the testimony of three witnesses, that there was not an agreement between the plaintiff and Mr. C.. to pay her $1 per week, and, upon her denial of any admission thereof, that no such agreement was ever made by her.

The judge at Special Term felt constrained to yield to the finding, but did it with great reluctance, as we do in affirming his action.

When an intelligent referee has seen and heard the witnesses, and arrived at a conclusion as to which of them is entitled to credit, it is dangerous to disregard his finding. Upon paper, the evidence of the knave may appear to be more honest than that of a less intelligent but more truthful witness; and it is only by seeing the witnesses, that the true weight to be given to their evidence can be ascertained.

The witnesses who testify to these admissions of the plaintiff are highly respectable ladies, who are incapable of swearing to a falsehood ; and had I been the referee, the denial of the plaintiff would not have overcome their evidence.

The parties selected the referee; he has discharged his duty according to the best of his ability ; and we do not feel at liberty to disregard his finding.

The finding of the value of the plaintiff’s services is upon conflicting- evidence, and the evidence is so nearly balanced that it is impossible, under the existing rules relating to the weight to be given to the finding Of facts by courts and referees, to disregard it.

*511[Fourth Department, General Term, at Buffalo, January 7, 1873.

The defendant cannot avail himself of the statutg of limitations, not having insisted upon it in the stipulation, nor upon the trial. (Van Vleck v. Burroughs, 6 Barb. 341.)

The judgment must be affirmed.

Mullin, Talcott and E. D. Smith, Justices.]