
    Fourth Department,
    January Term, 1899.
    Dan H. Davis, Respondent, v. John W. Gallagher and Kate M. Price, as Administrators, etc., of James L. Price, Deceased, Appellants.
    Judgment affirmed, with costs.—Appeal from a judgment entered upon the report of .A referee in favor of the plaintiff for $461.19 damages and $736.44 costs, in an action begun may 25,1885. The first trial was before H. E. Nichols, Esq., referee, whose judgment was affirmed by the General Term (55 Hun, -593), and the judgment of affirmance was reversed by the Court of Appeals (124 N. Y. 487) «on the ground of an erroneous ruling upon a =question arising under section 829 of the "Code of Civil Procedure. The original claim ■.presented by the plaintiff against the admin"isfcrafcoz's amounted to $2,085. The report •of the referee now brought in review only allowed the plaintiff two items, to wit, for /services from April, 1879, to March, 1882, at .•$20 per month; and, second, for twenty-two t±ons of hay at $6 per ton, and he offset or credited as partial payment upon the claims «certain items admitted in the plaintiff's comlaiut amounting to $554.20. and found a alance in favor of the plaintiff for the sum •¿of $279 and .interest thereon. At the time James L. Price, the deceased, made his' second venture in matrimony, he had a daughter, who is the wife of John W. Gallagher, one of the administrators; and his second wife was a widow having two children, one the plaintiff, and the other Mary E. Davis. At the time of the marriage, the plaintiff was about eight years of age, and Mary was about six years of age, and apparently they had in their own right about $979 in money, which Price borrowed, and for which he gave notes, and he entered into an agreement to provide for the children respectively until they came of age for the interest on such money. After they arrived of age, he entered into a settlement, paying to Mary the amount due her in money, and arranged to deed a small piece of land to the plaintiff for $1,000 in settlement of money theretofore borrowed and certain services which had accrued against him in favor of the plaintiff. That settlement took place about November 5,1876, at the office of J. W. Fenton, Esq.—
   Hardin, P. J.:

Because the plaintiff was allowed to recover for his services rendered for the deceased from the 17th of April, 1879, to the dQfch of March, 1882, at twenty dollars per month, the appellants allege that an •error was committed. They allege that the relation of loco parentis was sustained between the deceased and the plaintiff during that period of time. Whether such relation ■existed was a question of fact to be determined upon all the evidence adduced before the referee. Plaintiff, after he came of age, married and had a settlement for himself and wife, and the deceased did not stand in the relation of "locoparentis at the time the services were performed for which the referee has allowed. (Williams v. Hutchinson, 3 N. Y. 312; Gall v. Gall, 27 App. Div. 173; Robinson v. Raynor, 28 N. Y. 494; Reynolds v. Robinson, 64 id. 539.) It seems that early in the association of the deceased with •his new wife and her children, he entered into a business arrangement whereby their property was made to contribute to their support and education until they were twenty-one years of age, and that after the plaintiff reached his majority he haj a settlement for his work up to a certain time, and then he married and had a family of his •own and maintained a separate residence prior to the time for which lie recovered the value of his services rendered to the deceased. The plaintiff was born November 19,1853, and «came of age November 19, 18?’4. He was married January 17,1875, and with his wife began keeping house in a tenant house on Price’s farm, and lived there until November 5,1879, when he and his wife moved into a house that he had built upon the Schermerhorn place which bel-mged to him. The deceased had paid the plaintiff for services performed prior to those allowed by the referee, thus recognizing the obligation on bis part to compensate the plaintiff for services rendered, and thus indicating that the deceased did not understand that he stood in the position of loco parentis to the plaintiff. It seems that during the time that the services were rendered by the plaintiff, the intestate was a very fleshy man and little able to perform work upon the premises, and required the assistance of the plaintiff to oversee the other help and to render services in the carrying on of the farm of 154 acres of land, supporting a dairy of about twenty-five cows. The other help were employed by the day, from time to time, upon the farm. It appeared that the plaintiff did general farm work, and that he did the team work, and that he worked early and late. from fom* o’clock in the morning until sometimes nine o’clock in the evening. The deceased admitted, on several occasions, that the plaintiff was faithful and a hard working man, and that he intended to do well for him, and on several occasions referred to his indebtedness to the plaintiff. The deceased in a conversation held in respect to the plaintiff, said that he told Dan that he need not be afraid; they had land enough, and to stay right there and work, and he would get pay for his work.” To several witnesses •down to and near the close of his life the deceased stated his indebtedness to the plaintiff and his intention to compensate him therefor, and to some of the witnesses that he intended to compensate him in land. We think the referee was warranted in finding, upon all the evidence disclosed, that there was an understanding between the deceased and the plaintiff that the plaintiff should receive compensation for the services performed by him at the instance and request of the deceased, and that the referee’s report in that regard is sufficiently sustained by the evidence. (2) There was considerable conflict and some confusion in the evidence given I upon the hearing in respect to the hay. There is sufficient evidence to sustain the finding of fact made by the referee in respect thereto. In April, 1879, the plaintiff was the owner and in possession of the Schermerhorn farm, which was principally used for meadow and he continued to raise hay upon it. There was a bay in the barn. The dimensions of the bay were twenty-four by twenty-six feet with eighteen-foot posts. Mrs. Price testifies: I was present at a deal between Mr. Price and Dan in relation to hay. Mr. Price asked Dan what he would take for oue-lialf of his bay of hay in Vis barn. He told him; (this conversation was in 1830.) The forepart of March Mr. Davis told him he thought lie would need it all, the whole of it, to carry his stock through to grass. . Mr. Price said, all, all! There was no price fixed. Dan said he wanted the going price. Mr. Price said he could not pay him then; not down. Dan told him he wanted enough money to buy him a cow. Mr. Price told him to go to the barn and pick him out a cow. He did so; he went to the barn and picked him out a cow. That was all that was said; it was in the dining room at Mr. Price's house. This hay was in the barn at Mr. Davis’ place.” (3) Numerous exceptions were taken during the progress of the trial and are referred to by the appellants in their argument, many of them relating to matters which were not allowed by the referee, and those that pertain to the items that were allowed by the referee do not seem to present prejudicial error requiring an interference with the report of the referee. The report of the referee as to the damages should be sustained. All concurred.  