15 N.Y.S. 467 | N.Y. Sup. Ct. | 1891
It appears that the plaintiff rendered services to some extent to her grandfather, for which he executed and delivered to her his promissory note. That tlie sum was large for the amount of service shown must be conceded, but the amount was fixed by the maker himself, and he had a right to make his own estimate. It may well be, as held by the referee, that, on account of the relationship between the plaintiff and her grandfather, no promise would be implied to remunerate her for services. But it cannot be said that a claim for such remúneration would be so clearly unfounded that its extinguishment would be no consideration for a promise. The services continued after the note was made, and the circumstances indicate that the continuance of the services may have been, to some extent, amoving cause. The reiterated expressions of Mr. Titus that he wished the note paid, his employing counsel to insure its validity, have weight towards proving a consideration, and it must be remembered that a consideration is implied by law. It was for the defendant to prove affirmatively that no consideration existed. We think not only that he failed to do so, but that a sufficient consideration is affirmatively made out. It follows that the order appealed frpm should be reversed, and the motion to vacate the referee’s report should be granted, with costs to plaintiff of the general and special terms.
