
    Bridget Gillan, Respondent, v. Patrick O’Leary, as Executor, etc., of Ellen Rice, Deceased, Appellant.
    Second Department,
    February 28, 1908.
    Appeal — effect of failure to appeal from order denying motion for new trial — questions reviewable — effect of failure to except to charge — contract for services — express and implied contracts distinguished — pleading — complaint alleging implied contract.
    The Appellate Division cannot review the weight of evidence as to the existence of a contract of employment where there is some evidence of that contract if there be no appeal from the order denying the motion for a new trial.
    - When an appellant has failed to appeal from an order denying the motion for a new trial, the appeal is from the judgment only and brings up for review only questions of law arising upon exceptions taken during the trial; a review of questions of fact is waived.
    When there is no exception to a charge that under the evidence there was a presumption of law that compensation was to be paid for services rendered to a decedent, it becomes the law of the case by acquiescence.
    A contract is express when the agreement is formal and stated either verbally or in writing; it is implied when the agreement is a matter of inference and deduction. It is express when it consists of words written or spoken, expressing a mutual agreement of the parties;, it is implied when it is evidenced by conduct manifesting an intention to make an agreement.
    A complaint to recover for services rendered a decedent which alleges that the decedent requested the plaintiff to live with her and care for her in her declining years; that the plaintiff went and resided with the decedent, performing household and personal services necessary to her comfort, and that the latter induced plaintiff to do these things by promising to provide proper compensation by will, sets out, not an express, but an implied contract to pay for the services rendered.
    Appeal by the defendant, Patrick O’Leary, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of May, 1907, upon the verdict of a jury.
    
      Joseph M. Gazzam, Jr. [ William I. Carey with him on the brief], for the appellant.
    
      Charles 8. Taber, for the respondent.
   Woodward, J.:

The plaintiff brings this action, and allege's that heretofore, and on or about the 10th day of September, 1894, Ellen Eice requested the plaintiff to come and reside with her, the said Ellen Eice, * * * for the purpose of acting as a companion, and to take care of her, the said Ellen Eice, in her declining years, and plaintiff thereupon, at the express instance and request of the said Ellen Eice, thereupon took up her residence * * * and thereafter and from the 10th day of September, 1894, until the death of said Ellen Eice on May 9th, 1905, acted as the companion and housekeeper of the said Ellen Eice, and during all that time performed services as housekeeper, cook, secretary and companion, which services were reasonably worth the sum of twenty dollars per month ; .that to induce the plaintiff to render such services without immediate compensation, the said Ellen Eice frequently stated to plaintiff and to others and promised that she would make suitable provision for this plaintiff, in and by her last will and testament, as full compensation for such, services, and plaintiff performed the same relying upon such statements and promises.” She then alleges that-she lias-received only $15. on account of such services, and-that, the said Ellen -Eice departed this life on- the 9tli day óf May, 1905, leaving a last will and testament, arid that the plaintiff was. only given $100 by the provisions, of the said will, and the. further formal allegations necessary to the cause of action. The. defendant, answered the material allegations as to the request and the promise . to pay, and upon the issue so formed the parties-went to trial. A second cause of action for services as nurse was set forth, but this was' taken from the consideration of the jury,, so that the only questions, here presented relate to the judgment entered upon the verdict of the jury in favor of the plaintiff, the defendant appealing.

At the close of plaintiff’s case the defendant moved to dismiss the complaint upon the ground that the “ plaintiff has not proven the causé of action set forth in the complaint, and there is no proof here at all of any request on the part of the plaintiff, in September, 1894, or at any other time; and as to the nursirig and the alleged second cause of action, there is no proof at. all that there was any request, of any kind or any promise or -agreement or understanding for extra compensation.” The court granted the motion as to the second cause of action. Defendant’s counsel then continued: The complaint sets forth a request, or contract,, or agreement entered into at the time this plaintiff went there. The only testimony- in her own case to support that is testimony, which fails to 'support it and contradicts it;„so -that- Ido not think the question should be-submitted to the jury.” ■ The court pointed out the- general rule of law, suggested that there was evidence in support of the plaintiff’s-'first cause of action arid declared an ititeritiqn of sending the case to the jury. To this defendants counsel took an "exception. The motion to dismiss was not renewed at the close of the case, after defendant had called Witnesses, and the- Case was submitted to the . -jury upon a charge to which the defendant took „no exception, all of the deferidant’s requests to charge being granted-.. Upon- the jury rendering a verdict for the plaintiff, defendant inoved for a new trial upon the minutes,'this motion-being denied, hut the ¡order was not appealed fronq so that we have merely the judgment before us. It may be conceded that the rule laid down in Hopkins v. Clark (158 N. Y. 299, 304) is not controlling upon this court in the review of judgments of the trial court; that this court may review the question of the sufficiency of the evidence, as disclosed at the close of plaintiffs case, without a renewal of the motion at the close of the entire evidence; but that does not help the appellant in this case, from the fact that there was unquestionably some evidence of the contract alleged in the complaint, and we cannot review the weight of evidence where there is no appeal from the order denying the motion for a new trial. The appeal is alone from the judgment, bringing up for review only questions of law arising upon exceptions taken during the trial, and is, in effect, a waiver of any further review of the questions of fact. (Collier v. Collins, 172 N. Y. 99, 101.)

The plaintiff in this action was not a relative of the testatrix; she was shown by disinterested witnesses to have gone into the home of the testatrix, an old woman, living rather meanly, and to have performed the services of a maid, companion, nurse, etc., during a long series of years, during which time she received only fifteen dollars in money. The plaintiff produced witnesses to testify that the testatrix had at various times declared in the presence of the plaintiff and the witnesses that the plaintiff was to be compensated for her work by a provision in the will of the testatrix, and the court charged the jury, without exception on the part of the defendant, that under such circumstances there was a presumption of law that the services were' to be compensated for. This is undoubtedly the law; it became the law of this case by acquiescence on the part of the defendant, and unless there are valid exceptions upon the trial the judgment must be affirmed.

The appellant urges that the proofs are at variance with the facts alleged in the complaint, and the exceptions, taken relate to this proposition. The defendant insists that the complaint set forth an express contract, and that the proof only goes to establish, if anything, an implied contract. As we read the complaint it does not allege an express contract. A contract is express when the agreement is formal, and stated either verbally or in writing, and is implied when the agreement is matter of inference and deduction. In other words, a contract is express when it consists of words written or spoken, expressing an actual agreement of the parties. It is implied when it is evidenced by conduct manifesting an intention of an agreement. (1 Beach Mod. Law Cont. § 14.) The contract, set forth in the complaint.does not pretend to set forth the terms of the agreement; it simplyalleg.es that, the testatrix requested the plaintiff to come and live with her and to care for her in her declining years; that the plaintiff did go and reside with her, performing the household, and personal services necessary to the comfort of the testatrix, and that the latter induced the plaintiff to do these things by .promising to provide proper compensation in her will; and she produced, evidence from' which these-- facts might properly be adduced. The contract alleged , was an implied contract, and all evidence going to show the facts surrounding the transaction was clearly competent under the pleadings. '

An examination of the exceptions shows no reversible' error, and the judgment appealed from should stand.

Jeniis, Hooíiee, Gaynob and Rich, JJ., concurred.

Judgment affirmed, with costs.- . .'  