
    Sidney N. Havens, App’lt, v. Adeline P. Havens and Lewis Bowden, etc., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    .Parent and child—Action bt child against executors of parent for SERVICES WHILE LIVING WITH PARENT.
    A recovery cannot be had by near relations living upon the same premises in common, or members of the same family, for services rendered or materials furnished, without proving an express promise to pay or proving such facts and circumstances as to make the inference plain that there was such a promise.
    Appeal from a judgment and order confirming a report •of a referee on a reference under the statute to hear and ■determine a disputed claim of plaintiff against the estate of • defendants’ testator.
    
      The plaintiff was a son of the testator, and in March, 1868, went with his wife and children to reside at testator’s-residence.
    While so residing there, plaintiff worked upon the farm more or less, and built an addition to his father’s dwelling and made various improvements to the premises.
    After testator’s death the plaintiff presented a claim to defendants for services rendered and materials furnished, which was referred, under the statute, to a referee to hear and determine.
    
      Thomas F. Bisgood, for app’lt; Timothy M. Qriffing, for resp’ts.
   Pratt, J.

We think there was a total failure under well settled principles of law on the part of the plaintiff to prove-any express direction of the testator for the doing of work or furnishing materials, or any promise to pay for the same.

The plaintiff resided on the larm, and apparently had the-common use of it with his father for many years. The improvements were for the convenience of the plaintiff, and the money paid was partly, at least, for his benefit. We-might surmise that he expected to have the farm at his father’s death, and thus reap the benefit of the improvements; even in such case, the estate would not be liable to-pay in the absence of a promise of that kind.

The case is barren of any direction on the part of the testator to the plaintiff to pay out money or make improvements.

The fact that the plaintiff resided so long with his father and that no accounting seems to have been had, renders it. probable that the plaintiff never intended to charge and the father never expected to pay for any of the items claimed.

The case seems to fall within the principle stated by the-referee and enunciated in the following decisions: Bowen v. Bowen, 2 Brad., 336; 85 N. Y., 137; 35 Hun, 275, to wit: that no recovery can be had by near relations living upon the same premises in common, or members of the same family, without proving an express promise to pay or proving such facts and circumstances as to make the inference-plain that there was such a promise.

The exception to the ruling of the referee in excluding-the question put to the plaintiff as a witness in his own behalf, need not be considered, as the amount paid never became material, through failure to prove any liability. It was of no importance whether plaintiff expended much or-little unless there was a promise to repay on the part of testator.

The question, “ state whose money it was that you paid to-these different parties,” was also properly excluded for the. treason just stated. Assume it was plaintiff’s money, he could not make his father his debtor without a request to Pay. ■

The question, “ did you do any farming on your own account,” was not well taken, as the matter was immaterial.

The irresistible conclusion from a careful reading of the "testimony is that the plaintiff failed to make out a case.

Judgment affirmed, with costs.

Barnard, P. J., concurs.

Dykman, J.

(concurring).—This was a reference under "the statute of a disputed claim of the plaintiff against the -administrator of the defendants. The plaintiff was a son of "the testator, and with his family occupied a portion of his father’s dwelling-house in Suffolk county, from 1868 until his father’s death in 1885, and this claim-is for services during that period, and for materials furnished in building and work performed in the erection of certain buildings. The referee has found that the materials were furnished for the building, and the work was performed; that the labor was not performed by the plaintiff under an agreement with his father, nor were the materials furnished or money paid for labor performed by other parties by authority or under the order or direction of the testator, and that the plaintiff is not entitled to recover therefor. The report is sustained by the proof. The plaintiff falls within the line of decisions in this state, respecting services performed by members of the same family, where no implied promise to pay therefor is raised by the law, and the report of the referee is justified by that class of cases.

The judgment should, therefore, be affirmed, with costs.  