
    Emma L. Doremus, App’lt, v. Abraham Lott et al., Executors, etc., Resp’ts.
    
      (Supreme Court, General Term., Second Department,
    
    
      Filed June 25, 1888.)
    
    Master and servant—When relation exists—Sufficiency of proof
    On the trial of an action to recover the balance due for services rendered by plaintifE to the testatrix, it appeared that plaintiff had gone to live with testatrix when eleven years old and remained until testatrix’s death, thirteen years afterward. That she was not treated as if she had been a daughter; that she was not permitted to attend school, but was required to work continuously as a servant; that testatrix stated at one time that she had, up to that time, clothed plaintiff, but now she could buy her own clothes; that she was allowed to eat at the same table with testatrix, etc. Held, that the evidence showed that plaintiff was not a member of testatrix’s family, but a favored servant. That this was an exception to the rule that where one lives with another as a member of the family, to be provided for and brought up as such member, for services rendered while in this relation no recovery can be made.
    
      Appeal from a judgment in favor of the defendant, rendered by the Kings county special term, confirming the report of a referee.
    When about eleven years old plaintiff was taken, not to become a member of the family, but because the testatrix wanted some one to do work. Testatrix refused to send her to school because she couldn’t spare her from her work. Down to 1872 she received for her work her board and clothing. From that time until 1886 she and her mistress did all the work of the house, including cooking, washing and house cleaning. Testatrix died, leaving no children or descendents, and in her will made no provision nor left any gift to plaintiff. During the thirteen years that plaintiff lived with testatrix she never remained away from her one night.
    
      A. B. Carrington, for app’lt; John H. Kemble, for respts.
   Pratt, J.

seems to me this case falls within the excep_ tion to the rule that where one lives with another as a member of the family, to be provided for and brought up as such member, for services rendered while in this relation no recovery can be had.

The plaintiff was not a relative of the deceased and the proof shows that she was not treated as if she had been a daughter of the testatrix.

It may well be that for several years the board and clothing of the plaintiff was an equivalent for her services, but this cannot be said of the later years of her service.

The fact that the plaintiff ate at the same table and joined in conversation is not conclusive that she was treated as a member of the family, especially in view of the fact that she was not permitted to attend school, but was required to work continuously as a servant.

The testatrix refused to send the plaintiff to school giving as a reason that she desired her to work. This indicates that she did not receive her into the family to be treated as a member thereof. The plaintiff received no education whatever, although there was a free school in the immediate neighborhood.

The evidence was sufficient to warrant the inference that plaintiff was to be remunerated for her services.

The testatrix stated to a third party in 1872 that she had up to that time clothed the plaintiff but now she could buy her own clothes. Such a statement indicated that some arrangement had been made by which the plaintiff was to receive wages.

The fact that the testatrix desired to change her will and give plaintiff a legacy shows that either she thought the plaintiff had not been paid or that she deserved a gratuity for kind and faithful services.

The inference can be fairly drawn from all the testimony that in a legal sense the plaintiff was never regarded as a member of the family but rather as a favored servant.

In any event we fail to see, under all the circumstances, why she should not have been allowed for services after she arrived at full age. 38 How. Pr., 413 and 414.

Judgment reversed, and new trial ordered.

Barnard, P. J., and Dykman, J., concur.  