
    Annie Mary Velie, App’lt, v. Samuel Titus, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Bills and notes—Consideration.
    Plaintiff rendered services for defendant’s testator, who was her grandfather, who gave her therefor a note for $1,000 payable on demand. It appeared that testator made declarations that he had given her the note and employed counsel to ensure its validity. Held, that a sufficient consideration was shown; that while the relationship of the parties to the note was such that a promise to pay could not be implied, yet a claim for remuneration would not be so clearly unfounded that its extinguishment would be no consideration for a promise.
    Appeal from order of special term, denying motion to set aside the report of a referee.
    Proceedings to determine a claim against an estate. The claim was brought upon a note, of which the following is a copy: “$1,000.
    “ On demand, I promise to pay to Anna Mary Yelie (my granddaughter) one thousand dollars in consideration of five dollars in hand paid and for services rendered me and for other good and valuable consideration equivalent to the above named sum, which sum when paid shall be in full of all demands for services or otherwise which she has against me.
    “ Dated, Coffins Summit, Eebruaiy 14, 1887.
    “(Signed) John H. Titus.”
    The claimant was a granddaughter of the deceased, and had waited on and performed services for him and continued to do so down to the time of his death. The note in suit was executed and delivered by testator after being informed that a previous one which did not express a money consideration was not good.
    The decedent frequently declared he had given, or was going to give, claimant a note of $1,000 “ for her kindness to him in waiting upon him,” “ because she was a good, kind little girl and waited on him so good,” “for being a good girl and a good waiter.” He said “he wanted to do this to reward her.”
    
      Daniel W. Guernsey, for app’lt; Milton A. Fowler, for resp’t.
   Pratt, J.

—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 the 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 remuneration 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, a moving cause.

The reiterated, expressions of Mr. Titus that he wished the note paid; his employing counsel to ensure 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 from 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.

Dykman, J., concurs; Barnard, P. J., not sitting.  