189 A.D. 28 | N.Y. App. Div. | 1919
This appeal is from a judgment for labor and services. The plaintiff is the daughter-in-law of the defendant. Her husband was the only child, and died in 1910. He and the plaintiff had been married thirty years. They lived at the time of his death at New Baltimore, N. Y., and the funeral was held at the defendant’s residence at Worcester, N. Y. Soon after the funeral, the plaintiff testifies the defendant told her to go back home, pack up her things and move to his home. He told her to sell such of her goods as she did not care to keep, as she would not move again, but should always make her home at his house. One of the witnesses called by the plaintiff testified that the defendant said: “ I think Kit [meaning the plaintiff] ought to come and stay with us,” and the defendant’s wife said: “ Why, yes, he is the only son and she is the only daughter.” Defendant then hired one Fancher to go to New Baltimore, pack the furniture and bring it to Worcester, the defendant paying him for the service. The better furniture was placed in defendant’s house, and a portion stored in defendant’s barn, and another portion sold.
Defendant, his wife and his wife’s niece, Alice Bidlake, who had made it her home there since she was a small girl and who still made her home there when not teaching, constituted the family. The defendant soon after this told the plaintiff that "he was thinking of having a will.” The day he had his will made he told his wife and the plaintiff that he had remembered the plaintiff well in his will. The plaintiff was at this time about fifty years old. The defendant was about seventy-five years old. He had been a mason, but advancing years had compelled him to stop work. At the time the plaintiff became a member of the family the defend
About a year before she left, the defendant said he should think it was about time she would begin to want a home. She asked if he wanted her to take her things and go. He said, “ not just now, but when you get ready, Alice will be here.” About one month after the death of his wife, the plaintiff left the defendant’s home. She testified: “ I stayed until he told me to look for another place. I said ‘ what about this place here? ’ He said you will never get another cent here.’ So, of course, when he told me that, I knew that I was not wanted.” Soon thereafter this action was brought.
She had received during the seven years she was in defendant’s family five dollars which the defendant gave her soon after she went there. Plaintiff testified that in living there and in doing the work which she did, she relied upon defendant’s statement that he had remembered her well in his will, and that she should never move away from his house. She testified that when she came into defendant’s family it was with the understanding that she should be treated as a daughter, and that she was at all times ready to remain at
One question in this case is the plaintiff’s right to any recovery. The defendant was living at the time of the trial. The will which he made in the year 1910 was not proven. It was not shown that it is still in existence. The threat which he made at the time of her dismissal, “ You will never get another cent here,” may be taken, in the absence of other evidence, as indicating the defendant’s intention of destroying it. It indicates an intention to prevent performance of his agreement, and we think is sufficient to authorize a decision to that effect.
The leading case on plaintiff’s right of recovery is that of Henry v. Rowell (31 Misc. Rep. 384; affd., on opinion in the court below, 63 App. Div. 620). In that case the decedent lived in plaintiff’s family for twelve years under an agreement that she should be supported there during her lifetime, in consideration of which the decedent agreed to leave the plaintiff all the property she should then own. She lived fourteen years after leaving plaintiff’s family. The court held that an action brought after her death was barred by the six years’ Statute of Limitations. The case of Henry v. Rowell was distinguished in the case of Ga Nun v. Palmer (202 N. Y. 483). That was an action on a written contract by which the testatrix agreed to pay the plaintiff $70 a month as long as she lived and to give the plaintiff $20,000 upon her death for care in sickness and in health during her lifetime. She left the home of the plaintiff in May, 1900, with the intention of not returning, and made a somewhat similar oral contract with the defendant for her care and support. She died in August, 1906, making the defendant her sole legatee. The action
The action at bar is brought upon a quantum meruit upon the renunciation of an executory contract before the day of
All concurred, except Woodward, J., dissenting.
Judgment affirmed, with costs.