
    Roxanna C. Larkin, Resp’t., v. Paul C. Maxon, Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Reference—Findings of referee not inconsistent—Opinion ex-
    pressed AS TO SUBJECT OF .FINDING IMMATERIAL.
    Findings of a referee that services were rendered by claimant "as a domestic ” and that the relations of claimant in decedent’s family were “ like those of a daughter ” are not inconsistent. Where a referee finds as a fact the existence of an implied contract his opinion about an understanding “ not amounting to a contract” is immaterial.
    2. Same—Executors and administrators—Costs—Disbursements on
    REFERENCE OF CLAIM AGAINST DECEDENT—CODE OF PROCEDURE § 317—
    Laws of 1880, chap. 245, § 3, sued. 8.
    The right to disbursements given by Code of Procedure, § 317 upon a reference of a claim against a decedent is preserved by subdivision 8 of section 3 of the repealing act of 1880.
    Appeal from a judgment of supreme court, general term, fourth department, modifying and affirming as modified a judgment of special term entered upon report of referee in favor of claimant.
    The claim was for services rendered appellant’s testator, as a domestic in his family. Much testimony was taken at the trial bearing upon the question whether the claimant was a member of Sprague’s family, or a domestic, also upon the question of an agreement by Sprague to pay the claimant for her services by devising property to her. The referee found from this testimony in his report:
    That between the 5th day of October, 1867, and the 10th day of February, 1880, plaintiff rendered and performed work, labor and services for said Orvile 0. Sprague, at his request, as a domestic in his family, for the term of six hundred and two and one-third weeks; that said services were worth $1.50 per week; that her (plaintiff’s) relations in Sprague’s family were affectionate and kindly and like those of a daughter; that her. services prior to the time she talked of leaving, in or about 1875, were not done under any express contract and none existed before that time.
    
      Elon R. Brown, for appl’t; W. H. Oilman, for resp’t.
    
      
       Decision below, 35 Hun., 665, mem
      
    
   Per Curiam.

We do not think that the findings of the referee were inconsistent. A domestic may be treated, in many respects, like a daughter, without holding that relation to the employer. The facts were sufficient to establish at least an implied contract for compensation; and, so far as there was an express one, it has not been fulfilled by the device and legacy given by Mrs. Sprague. The destroyed will of Sprague and his wife bore somewhat on the actually existing relations between the parties, and formed incidents in the history of those relations. Since the referee found as a fact the existence of an implied contract, his opinion about an understanding not amounting to contract ” was immaterial.

From the judgment entered on the report of the referee the general term struck out the disbursements taxed and allowed, upon the ground that section 317 of the old Code of Procedure, which provided for their taxation, was repealed by the repealing act of 1880, and the right was not preserved by subdivision 8 of section 3 of that act. Upon the construction of that saving clause there has. been a difference of opinion in the supreme court. In Miller v. Miller, (32 Hun., 481), and Daggett v. Mead, (11 Abb., N. C., 116), the saving clause was held to prevent the destruction only of the right to such disbursements as were provided for in the Revised Statutes, and, there being none such in a case like the present, there was nothing saved. To the contrary are Krill v. Brownell, 40 Hun., 72; Sutton v. Newton, 15 Abb., N. C., 452; Hall v. Edmunds, 67 How. Pr., 202; and Overheiser v. Morehouse, 16 Abb. N. C., 208. We think these last cited cases establish the true construction of the subdivision referred to, and that it was intended and did preserve the right to disbursements given by the former Code upon the reference of a claim against a decedent.

The order of the general term striking out disbursements should be reversed, and the judgment as entered at special term be affirmed, with the costs of the appeal to this court.

All concur.  