
    CHARLES ULRICH, Appellant v. EDWARD ULRICH, as Executor, etc., Respondent.
    
      Parent and child, when this relation may he deemed changed to that of master and servant.
    
    This action was brought to recover for the work, labor and service of plaintiff and his wife, in taking care of and nursing his aged mother, Barbara Ulrich. The court charged the jury, that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict, otherwise not. The jury found for the defendant.
    
      Held, that the plaintiff lived with and was supported by his mother during the time for which the compensation is claimed, and the rule is well settled that where it is sought to establish the relation of master and servant between relatives living together, it must be substantially proved that the parties understood the latter relation to .-exist, and to have acted with reference to it; and the mere fact that the services rendered were meritorious and long continued, does not of itself tend to establish that relation. In order to create the relation of master and servant in such a case, there must be unequivocal acts of the parties to establish and prove an agreement. Where there is near relationship between the parties, the alleged promisor and promisee, transactions between them do not give rise to the ordinary presumptions that spring from business dealings between persons who are not of kindred to each other.
    In cases of this character, the law does not imply a promise to pay for service rendered, nor for board and lodging furnished, but will presume they were rendered and furnished gratuitously, and in order to overcome this presumption an express promise to pay must be proved, or satisfactory evidence shown, that will establish the fact or conclusion that the parties expected to pay and be paid, and the agreement of the parties for such payment must be clearly expressed and satisfactorily established by reliable evidence. The question to be determined was one pre-eminently for the jury, and it is not surprising that, under all the facts and circumstances, the jury found for the defendant.
    Before McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    
      Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for .a new trial.
    The action was against the defendant, as the executor of Barbara Ulrich, to recover for the work, labor and services of the plaintiff and his wife, in taking care of and nursing his mother, Barbara Ulrich, in her old age, from March, 1885, down to the time of her death, which occurred October 1, 1889. The answer denied the employment or the rendition of services.
    The court charged the jury, that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict, otherwise not.
    The jury found for the defendant, and from the judgment entered on their verdict and the order denying a motion for a new trial, the plaintiff appeals.
    
      Nelson Smith, attorney and of counsel, for appellant, argued:—
    I. The plaintiff was entitled to recover for the services of himself and his wife in taking care of the testatrix in her old age, and during the period mentioned- in the complaint. It is now well settled under the statute that the husband is entitled to the services of his wife, performed in connection with his own services, while they are living together as husband and wife, and in taking care of an old or sick person, Reynolds v. Robinson, 64 N. Y., 589; Bean v. Kiah, 4 Hun, 17; Cuck v. Quackenbush, 13 Ib., 107; Filer v. N. Y. C. & H. R. R. Co., 49 N. Y., 47. The case of Reynolds v. Robinson, supra, is precisely in point. There the plaintiff’s wife was not engaged in any business or service on her own account. The service she rendered was rendered for her husband in taking care of the deceased, and she did the services as part of her household duties, she and her husband acting together in performing them.
    II. The verdict was not only against the evidence, but was in total disregard of it. The plaintiff established his employment by the testatrix by the testimony of six witnesses, five of whom were wholly disinterested, namely, Henry Krauss, Ann Mary Ofct, Katie Freseher, Margaret Fest, and Albert Fest. The plaintiff proved the value of the services rendered by four witnesses, namely, Emilie Gail, Sarah Neubauer, Josephine Miller, and Lizzie Schnitzer, who were shown to be competent to testify upon the subject of value and were disinterested.
    III. The testatrix, being of sound mind, had the right to contract with the plaintiff for the services of himself and wife in taking care of her household and in taking care of her, irrespective of her physical condition, and would be liable for the services for which she promised to pay.
    IV. The court erred in charging the jury that the presumption of law was against such a claim as advanced in this action, and the exception thereto was well taken. There is no presumption of law against any valid claim, nor against any valid defence. McQueen v. Babcock, 3 Abb. Ct. of App. Dec., 132; Barrett v. Meyer, 10 Hun, 109, 110; Bank v. Gifford, 40 Barb., 659; Union Bank v. Bassett, 3 Abb. N. S., 359; Grant v. McLachlin, 4 How., 216. The principle of these cases is in point. Formerly there was a prejudice against the defence of usury, and the court would not open a default to allow it to be set up, nor permit an amendment for a like purpose, but the prejudice prevailing against legal claims or legal defenses has gradually given way to more enlightened views, and all legal rights now stand upon the same footing. All that the law presumes is that where there is no contract for services there can be no recovery. But that rule can have no application to this case, because here the plaintiff had been employed to remain with his mother and take care of,her, and she had promised to pay him, and the ruling of the court that the law raised a presumption against his claim stands out distinctly and clearly as erroneous. If any claim is entitled more than another to the favor of the law, it is one to recover wages. Wages are the fruit of labor, and the fruit of labor is given to every person in virtue of the right to live ; for if the fruit of labor were snatched from the workman before he could apply it to his use, starvation would ensue, and life would end. Hence, the right to the fruit of labor stands upon the same sacred ground as the right to live. And the right to live is the highest right conferred upon mortal man by his Creator.
    Y. The court erred in charging the jury that children were bound to care for their parents in their old age, and the exception thereto was well taken. Such a remark by the court only misled the jury. It could have no application to this case. Here the testatrix, it is true, was the plaintiff’s mother, but she was a wealthy woman—owned the house where she lived. By the provisions of her will, which was dated June 15, 1885, she gave her property to several children. The statute which required the father, mother or children, who are of sufficient ability, of any poor person who is blind, old, lame, impotent or decrepit, so as to be unable by work to maintain himself, to maintain him (Part First, chap. XX., title 1, 4th ed., R. 8. [Gould and Banks], pp. 8-11, §§ 1-13), was repealed by chap. 593 of the Laws of 1886, § 1, paragraph 5, p. 829. The charge of the court increased the already highly inflated prejudice in the minds of the jury. The statute upon that subject remaining unrepealed will be found in 3 R. S., 8th (Banks) ed., p. 2106; and § 14 requires every poor person, unable by his work to maintain himself, to be supported by the county or town in which he may be.
    
      
      Edward P. Orrell, attorney, and Edward W. S. Johnston of counsel, for respondent, argued:—
    I. In this case plaintiff had resided with his father and mother, had not supported himself for many years ; he was living with his parents at the time of his father’s death, being supported by his father together with his wife and three children. He claims that after the father’s death the mother was so feeble she was unable to take care of herself, and although the other son, Edward, with his children, were living in the same house, that the mother said she must have the plaintiff and his wife to take care of her in her old age, as she was helpless, and told them if they would stay there she would pay them ; in other words, that the plaintiff and his wife should continue to do what they were doing, and that the testatrix would pay them for it; and this evidence on the part of the defendant shows that in no way were they doing anything for the old lady, in fact, were being supported by her, clothed, lodged and fed, and such testimony offered by the defendant goes clearly to prove that the testatrix was in no need of any services on the part of the plaintiff’s wife; that she was a strong, hale, and hearty old woman. The plaintiff claims that after these declarations on the part of the testatrix he can recover on a quantum meruit. The finding of the jury in favor of the defendant must necessarily be taken as a finding that no services were rendered by plaintiff to the defendant’s testatrix, and that no such agreement as testified to was ever made.
    II. Passing over the question of the irregularity of the order denying the plaintiff’s motion for a new trial, we come to the question as to whether the verdict was contrary to or against the weight of evidence. On this question we heg the attention of the court to the fact that the plaintiff does not ask for the direction of a verdict in his favor. By omitting to do so he is precluded from alleging that the verdict is either contrary to or against the weight of evidence. This court applied this rule at general term in Sickels v. Gillies, 45 How., 94, and also in Hamilton v. The Third Avenue R. R. Co., 31 N. Y. Supr. Ct. Reps., 118, and in Rowe v. Stevens, 34 Ib., 436. In Peake v. Bell, 7 Hun, 454, it is stated that a new trial cannot be had, because the verdict is against the evidence, unless the party moved for a verdict. In Sheehy v. Cannon, 17 N. Y. Wkly. Dig., 159, the court says : “ Plaintiff having made no motion for the direction of a verdict in his favor nor excepted to the submission of the facts to the decision of the jury upon the ground that a case has not been made out, he cannot be heard to make an objection to the sufficiency of the evidence to sustain the verdict.” The case of Eowe v. Stevens, supra, the court says : “ A motion for a new trial on the minutes will not be granted on the ground that the verdict is without evidence or insufficiently supported by evidence, where a party has not, when there is a conflict of evidence on the facts, moved for the direction in his favor.” In Hanck v. Stephenson, 40 N. Y. Super. Ct. Reps., 543, the court says : “ That a verdict on conflicting evidence will not be disturbed, because the jury had the advantage of seeing the manner and appearance of the witnesses.” In Cheney v. The N. Y. Cent., 16 Hun, 415, the court says : “ Preponderance of evidence to be sufficient must be overwhelming.” And when we consider the fact that the evidence for the plaintiff, as to this alleged contract, consists solely of the evidence of his wife, which, even if not contradicted, the jury were at liberty to disbelieve, Koehler v. Ahler, 78 N. Y., 287, and that the defendants clearly showed that the testatrix was not in a condition requiring" any services, that she was well able to take care of herself and did so, and in fact performed a great portion of the work of this flat occupied by plaintiff and his family with her, and spent most of her time taking care of his numerous offspring, and that she was a bright, active woman, requiring no attendance or service, when we consider the fact that when the will was made, which will gives to each child an equal share among the five children, of which the plaintiff was one, and that at this time the plaintiff was asked if he was satisfied, and replied that he was, the fact of his surprise at getting what he did, that when, at the time of the reading of the will, the question was asked, if there was any claims against or debts owing by the testatrix to anybody and he refrained from putting forward any claim and sat by in silence without asserting his supposed rights, if .any, and when he was sought to be charged with the rent of this floor in which he had been living after his mother’s death, and he agreed to pay the sum of $20 a month for the same at that time, and when the heirs came together and had a settlement of the accounts of the executor who had been collecting the rents of the property and paying out the disbursements on the property, he had signed the accounts with the others expressing himself satisfied therewith ; and at neither of which times did he put forth any claim, we must be forced to the conclusion that the evidence fully sustains the verdict, and in fact as the court said in Ross v. Ross, 6 Hun, 184, speaking of a case like the one at bar, “It would be difficult to see how the jury could find otherwise than they did.” In Cohu v. Husson, 23 N. Y. St. Rep., 504, the Court of Appeals says : “ Silence when one ought to speak is frequently as significant as an express admission; and if any one is called upon to pay a certain sum claimed to be due on intestate’s estate, or a claim or counterclaim for any sum, the jury has a right to take into account this silence on his part, and this furnishes some evidence that his counterclaim was never a valid claim against the estate.”
   By the Court.—McAdam, J.

The plaintiff lived with and was supported by his mother during the time for which compensation is claimed, and the rule is settled that where it is sought to establish the relation of master and servant between relatives living together, it must be proved that the parties understood the latter relation to exist, and acted with reference to it, and the mere fact that the services rendered were meritorious and long continued does not of itself tend to establish the relation. In order to create the relation of master and servant in such a case there must be unequivocal acts proving an agreement.

“ The duties of children to their parents,” says Blackstone, “arise from a principle of natural justice and retribution. For to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after ; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age ; they who by sustenance and education have enabled their offspring to prosper, Ought in return to be supported by that offspring in case they stand in need of assistance.” 1 Bl. Com., 453. This expresses the moral rather than the legal obligation of the child, for at common law children were not bound to support their parents, yet the sentiment expressed by Blackstone is so just that statutes have been passed under which children may be compelled to support indigent parents, Code Crim. Pro., § 914, and thus by force of positive enactments, the principle stated by that learned jurist is practically the law of the land to-day. Where there is near' relationship between the alleged promisor and promisee, transactions between them do not give rise to the ordinary presumptions that spring from business dealings. Collyer v. Collyer, 113 N. Y., 448. Indeed, in cases of this character, the law does not imply a promise to pay for services rendered or for board and lodging furnished, but will presume that they were rendered and furnished gratuitously, and in order to overcome this presumption, there must be an express promise to pay proved, or satisfactory evidence showing that the parties expected to pay and be paid. Lyon v. Smith, 35 Hun, 275; Roblee v. Gallentine, 19 Week Dig., 153; Carpenter v. Weller, 15 Hun, 134; Updike v. Titus, 13 N. J. Eq., 152; Hall v. Finch, 19 Wisc., 278; Andrus v. Foster, 17 Vt., 560; Fitch v. Peckham, 16 Ib., 150; Ayres v. Hull, 5 Kan., 419; Greenwell v. Greenwell, 28 Ib., 675; Ulrich v. Arnold, 120 Pa. St., 170; Houck’s Executors, 89, Ib., 552; Lynn v. Lynn, 29 Ib., 369; Hertzog v. Hertzog, Ib., 468.

The agreement should be clearly expressed or satisfactorily established by reliable evidence. Spraker v. Dow, 16 State R., 297; Gaylord v. Gaylord, 7 Ib., 703; Shakespeare v. Markham, 10 Hun, 311; aff'd 72 N. Y., 400; Keller v. Stuck, 4 Redf., 294. In Ulrich v. Arnold, 120 Penn. St. R., 170, the court went as far as to say: “ Mere loose and rambling declarations of an aged and infirm parent expressing gratitude for the services of a child during a period of illness and of suffering, services which all right-minded children willingly render to their suffering parents without hope of reward, or expressing a presumption that payment will be made for them, or the hope that compensation should be rendered after death, are not a contract nor the evidence of one between persons thus related. It is at best but an ill-judged and misplaced impression which prompts juries to dignify such declarations and expressions with the qualities of a positive and express contract. It is in derogation of our common humanity, and of the best interests of our race, and ought not to be encouraged by a tribunal which administers justice. If in any given case a child expects to be paid for filial services to an infirm parent let him or her conform to the law and enter into a specific and definite contract with the parent during the parent’s life, fixing the character of the services, and determine positively the fact that compensation is to be made for it. When this is done the courts will see that the contract is enforced; when it is not done claims for such services, when presented as legal obligations, do not deserve the slightest consideration.”

The plaintiff received the same bounty under his mother’s will that the other- children obtained. He made no claim for compensation during her lifetime. Claims thus withheld during the lifetime of an alleged debtor, and sought to be enforced after death, are to be carefully scrutinized and only admitted upon satisfactory proof. Kearney v. McKeon, 85 N. Y., 137; Havens v. Havens, 21 State R., 958; Ross v. Ross, 6 Hun, 184; Moore v. Moore, 3 Abb. Ct. App. Dec., 303, as they have every intendment and presumption against them. Koecker’s Executors, 47 L. I. Pa., 505. In view of these authorities, it cannot be seriously claimed that the case was not fairly submitted to the jury, or that the learned trial judge committed the slightest error in his charge. The facts were seemingly against the plaintiff’s contention, and the issues had to go to the jury for their determination. At the conclusion of the evidence, it was a question about which minds might differ, as to whether the plaintiff had overcome the presumptions against his right of recovery, and whether his proofs were satisfactory.

The plaintiff is undoubtedly correct in claiming that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable, or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury, Kavanagh v. Wilson, 70 N. Y., 177, but the witnesses in this instance testified only to conversations overheard and admissions made, a dangerous species of evidence at best; for such declarations are apt to be misunderstood and misinterpreted, particularly when made by an aged and infirm woman, who has already made provision in her will for the benefit of the person in whose favor the alleged admissions were made.

Inferences were to he drawn from the relations of the parties and the surrounding circumstances. The conversations were to be construed with reference to them, that the intent of the parties might be arrived at, and it may well be that the mother in speaking of compensation, may have had in mind the provisions of her will, in and by which the plaintiff received his full share of all her worldly goods. There was such a strong degree of improbability against the propriety of the claim made, that the question to be determined was one pre-eminently for the jury (a subject easier to settle in a particular instance than by generalization), nor is it surprising, in view of the circumstances, that the jury found in favor of the defendant. No error was committed and no injustice done. It follows that the judgment and order appealed from must be affirmed, with costs.

Gildersleeve, J., concurred.  