
    Alice M. Greenwood, Respondent, v. Edward B. Judson, as Administrator, etc. of Myron C. Merriman Deceased, Appellant.
    Fourth Department,
    November, 1905.
    Decedent’s estate"— claim for services rendered decedent — sufficient proof thereof — running of Statute of Limitations stopped by payments on account.
    .When, in an action by a niece, against the estate of her uncle, to recover a bal- ' anee due for services rendered during his lifetime, the contract .to pay is established and it is proved that a-continuous series of payments were made during the time of service, the Statute of Limitations does not run on the balance due.
    This is so, even though the plaintiff left the employment on her. marriage, but' returned at the death of her husband, two months thereafter, if the proof shows that the parties did not treat the return as creating a new contract, ..but . only as á continuation of the old one.
    
      Though mere proof of payment made hy decedent does not show the validity or extent of plaintiff’s claim, entries in the decedent’s books, stating that some payments were made to her “on account of services,” show a recognition by decedent of the employment and of a standing account.
    Nash, J., concurred as to part of claim; McLennan, P. J., dissented, with opinion.
    Appeal by the defendant, Edward B. Judson, as administrator, etc., of Myron C. Merriman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 12th day of October, 1904, upon the report of a referee. of a jury for $600, and also from an order entered in said clerk’s office on the 18th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Irving D. Vann, for the appellant.
    
      George W. Driscoll, for the respondent.
   Spring, J.:

The plaintiff had be4en for fourteen years a country, schoolteacher, receiving eight dollars per week. She was the niece of Myron C. Merriman, who was a man of intelligence, possessing considerable property, but very deaf and somewhat eccentric. He needed some one to assist him in his business transactions and importuned the -plaintiff to cease her school teaching and come into his service. She finally in 1884 assented to his request, and, until his death, March 29, 1902, at the age- of eighty-three years, she remained with him almost constantly. During that period she wás faithful, methodical and attentive to his business, which was extensive. She represented him in his transactions, accompanied him when away from his office, and he evidently relied upon- and trusted her implicitly. While honest and of good purposes, he was annoying, blunt, aggressively talkative and difficult to get along with.

The plaintiff presented a claim to the defendant after the death of Merriman,. who left a will, aggregating $9,331, and upon which she admitted payments to • the amount of $2,943.01, leaving a balanbe of $6,387.99, which has been substantially allowed by the referee.

The claim presented is divided into periods. From January 1, 1885, to April 1, 1888, she charged sixteen dollars per week;. from April 1, 1888, to October 15, 1891, ten dollars per week, and from January 1, 1892, to March ■ 29, 1902, nine dollars per week. There was no actual division bétWeen the first two subdivisions of the claim, but the amount of service rendered was not identical.

The account is apparently a meritorious one, and the charges made were reasonable in view of her previous compensation and the character of her employment and her fidelity to the testator. It is also obvious that Mr. Merriman expected to pay the plaintiff for her "services. The correspondence discloses that intention. She was dependent upon her own labors for her livelihood. It is not credible that she suspended her school teaching and became the confidential adviser and mouthpiece of her uncle' in his perplexity merely because of affection for him or by reason of their relationship-. She came and remained at his earnest solicitation and she anticipated that she was to .be recompensed.

The only question, and it is not free from difficulty, is whether the major part of the "claim is barred by the Statute of Limitations. The evidence does not disclose that there was any definite tinderstanding as to the length of time the employment was to continue or as to the amount of compensation • to be paid except there is a little proof from' which the deduction may be made that he expected' to pay double what she was then receiving as - schoolteacher.

The law will not imply an agreement that the payment, was to be deferred until the services terminated. (Matter of Gardner, 103 N. Y. 533.) She could have sued Merriman to recover for her services .at the end of each week. (Matter of Goss, 98 App. Div. 489.)

It is contended that payments were made from time to time by the testator toward these services, and -for that reason the claim has been kept in existence during the whole period, and' the referee has allowed the payments contained in the account presented. These items embodied in her. claim are mere admissions binding upon her, but are, of-course, not available for' the purpose of establishing the validity or extent of her demand.

The testator, in an imperfect ambiguous way, kept in a small book items' of payments made to the plaintiff.^ These-extended from December, 1887, to 1900. The first is “Alice 20th inst., $100,” and usually there is nb entry as to the account upon which the payment was to be applied. One entry under date of May 25, 1894, is “ On account of services, Alice $20.” Some of the entries are' blurred, and some of them are, Cash to Alice ” or “ For Alice.” While there were one or two other transactions between these two people, the evidence fairly shows that these matters were all adjusted, and the manner of their adjustment appears. There was, therefore, apparently no other claim to which these payments related, except the one for services. The one entry, On account of services, Alice $20,” is significant. It denotes he recognized she was in his employment, and that there was an existing account in her favor for the services she was rendering. Witnesses also testified to payments of money made to the plain tiff by Mr. Merriman, and in one instance he accompanied the payment with the remark, It makes Alice good natured to pay her money.”

The plaintiff was married in the fall ,of 1891, and her husband died two months later. During her married life she rendered no service to Mr. Merriman,-but on January first following she returned to his office. The appellant’s counsel urges with much force that the marriage ended the period of service, and the employment thereafter was a new distinct engagement. The parties, however, do not appear to have attached any such interpretation to the subsequent employment. The payments made by Mr. Merriman give no indication that the old relation had ended and an entirely new one had been established. The entries are continuous, and the payments seem to have been applied toward the payment of the account generally. The closeness of the relations of these parties and the thrift of the plaintiff may be responsible in some measure for the unsatisfactory condition of the accounts on Mr. Merriman’s part and for the running of the claim unsettled during the whole period she was working for her uncle.

We start with a claim not fictitious; not one which cannot withstand the scrutiny and .investigation justly meted out to demands against the representatives of a decedent, but one that is meritorious and reasonable in the compensation charged and presented by one on whom the testator confidently relied. She accompanies her claim with a statement of the payments. She produces in support of the validity of her account credits and entries and payments made by the testator which ihust either have been gifts or intended to apply on. this demand.

We think the judgment should be affirmed:

■ All concurred; Hash, J., only as to that part of the claim accruing subsequent to January 1, 1892, except McLennan, P. J., who dissented m an opinion. . -

McLennan, P, J. (dissenting):

I dissent upomthe ground that there- is no evidence which proves or tends to prove that any payment was made by the decedent upon plaintiffs “ claim ” against his estate, and, therefore, that said claim, except that portion of it which arose within a period of six years prior' to the. commencement of the action, is barred by the Statute • of Limitations, except • as the time within which "such action may be commenced is extended by section 40.3 of the Code . of Civil Procedure. Whether the .action' was commenced within the time prescribed by the statute is purely a question of law and should be determined without-reference to the fact, assuming it to be true,.ás stated in the prevailing opinion,-that the claim is not fictitious, “not one which cannot Withstand the scrutiny and investir gation justly meted, out to demands against the representatives of a decedérit, but one that is meritorious and reasonable in the compensation charged and presented by one on whom the testator (the deceased) confidently relied.” The rule which should control the deter mination .of the question at law in that regard was very clearly stated by the late Judge Eabl in the case of Crow v. Gleason (141 N. Y. 489, 493), as follows : “In order to make a money payment a part payment within the statute, the burden is upon- the «’editor to show that it was a payment of a portion of the admitted debt, and that it'was paid to and accepted by him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay. the remainder. Bart payment of a debt is .not of itself conclusive to take the case out of the statute. In order to have that effect it must not only appear that the payment was made on account of a debt, but also on account of the debt for which actitin is brought, and that the payment was made as a part of a larger indebtedness, and under such circumstances as warrant a jury in finding an implied promise to pay the balance.”

The evidence does show that during the period the plaintiff was in the employ of the decedent he paid to her moneys at different times. Some of such payments were concededly. presents. Others of them represented amounts which were due and owing to her by reason of transactions wholly independent of any claim for services rendered to the decedent by the plaintiff. We think the evidence wholly fails to show that any payment so made was made in part payment for services rendered; that it would be the merest speculation to say that any payment shown by the evidence to have been made to the plaintiff was not a gift, or did not have reference to some' other transaction than a payment to apply upon her claim for services. The evidence does establish conclusively that the services complained for were rendered; that they were rendered under circumstances which were disagreeable and antioying to the plaintiff; that she was faithful in the discharge of' her duties as the decedent’s employee; but we fail to discover how, under the law, such circumstances can have any bearing upon the question as to whether or hot a payment had been made upon such claim by the deceased at such time as would prevent the statute running against it within the rule stated by Judge Earl. If the services had been rendered under circumstances entirely agreeable and of the most congenial character, and 'even at the solicitation of the decedent, the question here presented, to wit, whether such claim was barred by the Statute of Limitations, would be in no manner changed. But as bearing upon the merits it can hardly be improper to suggest that it is somewhat singular that the decedent, a man with an estate of nearly a quarter million dollars, and with his traits of character, should have permitted an indebtedness to accumulate against him for over $7,GOO, extending over a period of fifteen years, in favor of the plaintiff, a poor girl, who-had entered into his employ at his earnest solicitation, the inducement being that she could earn more money in such capacity than by teaching school.'

Upon the evidence in the case the natural desire is that the plaintiff should succeed; that she having spent so many years of her life in service so disagreeable to her and at the same time so useful and' essential to the decedent, should be liberally compensated. We think,- however, that those circumstances or conditions should have no influence in determining the question of law whether the claim presented or any paYt of it w;as barred by the -Statute of Limitations, because if not, then a claim which is less meritorious so far as the. rendition of the services and the character of such services is concerned, mtist likewise be. held not to be barred by the statute: , Wé think the record will be searched in vain for evidence tending to show that a single payment of money was made by the, decedent to the plaintiff to apply upon the .claim in question, “ and that it was paid to and accepted by him (her) as such, accompanied by circumstances amounting to an absolute, and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.”

Wé think that it should be held as matter of law that the plaintiff did not show herself entitled to recover for services rendered for the decedent beyond the time limited by the Statute ■ of Limitations, and, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.-

Judgment affirmed, with costs.  