
    Maria Smith, Respondent, v. Jacob Velie, Appellant.
    (Argued February 1, 1875;
    decided February 9, 1875.)
    
      It seems, that where a disputed claim against the estate of a deceased per-* son is referred, pursuant to the statute (2 R. S., 89, § 36), to preserve the right to a review upon appeal from a judgment entered upon the report of the referee, the party aggrieved must move at Special Term, upon a case or otherwise, to set aside the report or for a new trial, or must appear and oppose its confirmation and take the proper exceptions.
    Where one enters into the service of another without an agreement at the commencement of the service as to the term or compensation, a subsequent agreement fixing the rate of compensation for a specified time does not, in the absence of other proof, in case he continues in the service after the expiration of that time, raise a presumption that he is to receive thereafter compensation at the same rate.
    Where such service continues many years, the master paying each year various sums of money and delivering goods, of which he keeps an account, the presumption is that the payments apply on the balance unpaid and not upon the wages of any particular year; and thus the entire balance is taken out of the operation of the statute of limitations; and when the accounts have remained open and unliquidated, the employe is not limited to a recovery for six years’ service.
    Interest, however, is not allowable until the accounts are settled; and the termination of the employment by the death of the master gives no right to interest from that time on the balance unpaid.
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee.
    Plaintiff presented a claim for services against the estate of Joseph W. Velie, defendant’s intestate, which was disputed, and was referred, by agreement of the parties, pursuant to the Revised Statutes (2 E. S., 89, § 36).
    The referee found the following facts:
    “ First. That the plaintiff performed work for J. W. Yelie defendant’s intestate, from June 8, 1851, until the 30th day of May, 1872, as housekeeper, and in general household service. Second. That no express contract was made as to the term of such service, as to time of payments, nor as to the measure of compensation. Third. That the value of the services so performed was one dollar and fifty cents per week from June 8th, 1851 to June 8fch 1853, and from that date until June 8th, 1860, the value of said service was two dollars per week, and from June 8th, 1860 until May 30th, 1872, the value of the service so performed was two dollars and fifty cents per week. Fourth. That during the time of service above specified the said Velie made in each year either payments in money or furnished clothing and other articles to the plaintiff, which he caused to be charged against her on account of her said service, and which amounted in all to the sum of $478.34. Fifth. That no application was made by the parties, or either of them, of the payments so made to any specific portion of said indebtedness, but that all such charges and payments were intended to be on account of the amount due to plaintiff for said service.”
    “ And, as a conclusion of law, that the plaintiff was entitled to a judgment for the sum of $1,835.66, with interest from the 30th day of May, 1872.”
    On the settlement of the case by the referee, the following additional facts were found: “That the plaintiff’s services commenced for the intestate on the 8th day of June, 1852, and, under an agreement between plaintiff and the deceased, that she should work for him two years at the rate of one dollar and fifty cents per week; ” and, in lieu of the second finding contained in the report: “ That after the first two years no express contract was made as to the term of such service, as to time of payment, nor as to the measure of compensation.”
    In lieu of the third finding: “That the agreed price for the service so performed was one dollar and fifty cents per week from June 8th, 1852 to June 8th, 1854, and from that date until June 8th, 1861, the value of said service was two dollars per week; and from June 8th, 1861 until May 30th, 1872 the value of the service so performed was two dollars and fifty cents per week.”
    Further facts appear in the opinion.
    
      
      O. D. M. Baker for the appellant.
    In an action to recover for wages, in the absence of an express agreement to pay more or less than the original contract-price, that rate is presumed to continue. (Doe v. Bell, 5 T. R., 471; Vail v. J. L. F. Co., 32 Barb., 567; McGlucky v. Bitter, 1 E. D. S., 618.) The statute of limitations has barred a recovery for any wages which accrued before June 8, 1866. (Palmer v. City of N. Y., 2 Sandf., 318; Conger v. Van Aernam, 43 Barb., 602; Huttman v. Boulnois, 5 C. & P., 510; Buston v. Collyer, 4 Bing., 309 ; Davis v. Gorton, 16 N. Y., 255.) Interest began to accrue and the statute to run against each year’s service as it became due. (Rodman v. Hidden, 10 Wend., 498; Raynor v. Robinson, 36 Barb., 132; Adams v. Ft. Plain Bk., 36 N. Y., 255; Mygatt v. Wilcox, 45 id., 306; Perrine v. Hotchkiss, 2 N. Y. S. C., 370.) As no application of payments was made by the parties they will be applied by law. (Allen v. Culver, 3 Den., 239; Dows v. Morewood, 10 Barb., 189; Pattison v. Hull, 9 Cow., 765; Mills v. Fowkes, 5 Bing. N. C., 455; Smith v. Forty, 4 C. & P., 126.) The transactions between the parties were not such as. to be excepted from the operation of the statute as an account. (Code, § 95 ; Coltam v. Partridge, 4 M. & G., 271; Costar v. Murray, 5 J. Ch., 522; Kimball v. Brown, 7 Wend., 322; Edmonston v. Thompson, 18 id., 555 ; Hallock v. Losee, 1 Sandf., 220; Ang. on Lim., §§ 148, 149; Tippets v. Heane, 1 C., M. & R., 252; Bloomer v. Bloomer, 2 Brad., 339; Kelly's Estate, 1 Tuck., 18; Tracy v. Suydam, 30 Barb., 117.) The referee having held the transactions to amount to an unliquidated account between the parties, it was error to allow interest from the intestate’s death to the time of his report. (Wood v. Hickok, 2 Wend., 501; McKnight v. Dunlap, 4 Barb., 47 ; Holmes v. Rankin, 17 id., 454; Green v. Disbrow, 7 Sandf., 381.)
    
      Homer A. Nelson for the respondent.
    The payments made were upon the gross amount of the indebtedness and so took the case out of the statute of limitations. (Code, § 110; 
      Miller v. Talcott, 46 Barb., 168; McLaren v. McMartin, 36 N. Y., 88; S. C., 33 How., 449; 3 Abb. Pr. [N. S.], 345; 9 N. Y., 85; reversing, 11 Barb., 254; Davis v. Gorton, 16 N. Y., 632.)
   Grover, J.

The respondent presented a claim to the appellant against the estate represented by him for services rendered by her to the intestate during his lifetime. The appellant, doubting the justice of the claim, an agreement was entered into by the parties to refer the same pursuant to 2 Revised Statutes, 89, section 36. After hearing the matter by the referee the case shows that the report was presented to the court at Special Term, by which it was confirmed and judgment ordered thereon in favor of the claimant; after the entry of which the appellant appealed therefrom to the Supreme Court. The case fails to show that the appellant made any motion at the Special Term, upon a case or otherwise, to set the report aside or for a new trial, or any opposition to its confirmation. If this was so there would be nothing for the General Term or this court to review, and the judgment should be affirmed. But as among the papers there is a case, settled by the referee, containing the testimony given and the exceptions taken upon the hearing, and as no objections appear to have been made at the General Term, but that the case and all the questions raised by it were presented to and passed upon by the Special Term, and the proper exception then taken to a confirmation of the report and the order of judgment, I shall assume that this was done, and that the questions presented by the case are properly before this court for review.

The counsel for the appellant insists that the respondent could only recover compensation at the rate of one dollar and fifty cents per week for any part of her services. He bases this upon the finding of the referee, that the agreed price for the first two years was one dollar and fifty cents per week, and that after that there was no express contract as to the time of service, amount of wages, or when the same should be paid. The only evidence upon which this finding was made at the request of the appellant was the following statement of the respondent at the commencement of her account: Maria Smith commenced housekeeping for J. W. Velie June 8, 1851, for one dollar and fifty cents per week for two years, amounting to one hundred and fifty six dollars. This tended to show an agreement, made at some time, fixing that rate of compensation for two years’ service, but fails to show that she, at the commencement, agreed to serve for two years or that the appellant agreed to employ for that time, or that any agreement was then made fixing the compensation. It is entirely consistent with this statement that the amount of wages was fixed by the parties after the expiration of or any time during the two years. The same remarks apply to the finding of the referee. The counsel for the appellant is correct in the position that when one is hired for a compensation fixed by agreement of the parties for a specified time, and continues to serve in the same capacity after its expiration, the law will presume, in the absence of other proof, that he is to receive compensation at the same rate; but the evidence clearly fails to bring this case within the rule.

The counsel for the appellant insists that the respondent’s claim for all hut the six years immediately preceding the death of the intestate was barred by the statute of limitations. His argument to sustain this position is quite ingenious. It is, that, in the absence of an express contract after the first two years, the law implies a contract from year to year; that at the end of each year the wages become due and the statute commenced running for that year at that time, and that the law, in the absence of an agreement of the parties, will apply any payment made to the wages of the year first becoming due, leaving the statute to run on those becoming thereafter due. The supplemental finding of a contract from year to year is a mere legal conclusion of the referee, having no foundation in the evidence. It is true, that had there been nothing paid, nor any mutual open accounts between the parties, the plaintiff could only have recovered for the six years, as the statute would have constituted a bar to all claim for previous services. (Coster v. Murray, 5 J. Ch., 522; Kimball v. Brown, 7 Wend., 322; Angell on Limitations, §§ 148, 149.) But the proof shows that the intestate let the plaintiff have, in every year, various sums of money and different articles of goods, of which he kept an account against her, which was to apply upon her wages. Whenever he did this, her services being continuous and no time fixed by agreement for the payment of any part, the presumption is that it was to apply upon the balance he at that time owed her, and not upon the wages of any particular year. Indeed, I think the claim of the plaintiff, at any and all times for previous services, was an entire account, and that she could have maintained but a single action thereon against the defendant: that she could not maintain a separate action for each year of services, or any other specified part, after all had been rendered. A payment by the intestate upon the balance due the claimant took the entire balance out of the operation of the statute. The referee allowed interest from the death of the testator to the date of his report, to which the appellant excepted. I think this exception well taken. The case shows that the accounts between the parties were open and unliquidated. Interest is not allowed upon the balance ultimately found due upon such an account. (McKnight v. Dunlop, 4 Barb., 36 ; Holmes v. Rankin, 17 id., 454.) Indeed, it is not claimed, upon the part of the respondent, that she was entitled to interest for any time prior to the death of the intestate. Upon what principle it should commence running upon that event I am unable to discover. The counsel for the respondent cites McMahon v. The New York cmd Brie Railroad Company (20 N. Y., 463) to sustain the judgment in this respect. This case, as I understand it, is a direct authority against it. There was no time fixed for pay-, inent. The case shows that there was no fixed market-value by which the rate of wages could be determined. There was no default in the intestate or appellant in determining the balance due the claimant. Under such a state, the learned judge says, in the case cited, interest cannot be allowed.

It follows that the amount of interest included in the report must be deducted from the judgment at the date of the report, and as so modified the judgment must be affirmed without costs, in this court, to either party.

All concur.

Judgment accordingly.  