
    Louise Hummel, Respondent, v. Henry C. Hurd, as Executor, etc., of Cloyes Hurd, Deceased, Appellant.
    Fourth Department,
    May 2, 1906.
    Executors and administrators — evidence^proof sufficient to show promise of decedent to pay attendant—proof of due service of notice rejecting claim.
    Although the evidence of a contract by a decedent to pay a servant $1,000 if she remains and serves him during his life, as offered by the claimant against his estate, may not be entirely satisfactory, yet when it is corroborated by the admissions of the executor on cross-examination showing that he heard the decedent make such offer, a finding by the jury that the contract was made will not be disturbed.
    When the executor claims that notice of rejection of such claim was served, and that the claim was barred by the short Statute of Limitations, and an attorney; has testified that he drew the notice ajad delivered it, to' the attorney for the - executor and that he saw the constable serve it on the claimant, which is corroborated by the testimony of the constable, and'there is also evidence that the notice was seen in the possession of'the claimant’s attorney, -and’ that he asked for a waiver of the short Statute of Limitations, which evidence the claimant’s attorney does not contradict, the fact of due rejection’of the claim .is so well established as to leave no question for the jury.
    Appeal by the defendant, Henry C. Hurd, as executor, etc., of Cloyes Hurd, deceased, from a judgment of the County Court of Brie county in 'favor of the plaintiff,, entered in the office of the' clerk of the county of. Erie on thé ,21st day of june^ 1902, upon the vefdict of a jury, and also from an order entered in said clerk’s office on. the 1:2th day of August, 1902, denying' the. defendant’s motion for a new trial made upon the minutes. ■
    The action was commenced on the 19tli day Of April, 1901, to recover the amount claimed to be due and owing'to the plaintiff from the éstate of one Cloyes Hurd, deceased, represented by the defendant Henry C. Hurd as executor.
    . Two defenses were interposed by the answer: First, that the plaintiff had no valid claim against the decedent’s- estate, and, second,, that her'alleged cause of aqtion Was barred by section 1822 of the Code of Civil Procedure, because, as alleged, the action was not begun within six months after her claim was disputed or rejected, there being no written consent'filed by the respective parties with the surrogate that said claim may.be heard, etc., as required by said section. Both issues were determined -adversely -to the defendant by the verdict'of the jury. '
    
      Thomas E. Boyd, for the appellant.
    
      Percival M. White, for the respondent.
   McLennan, P. J.:

.Practically the only contention made, by the" appellant is that'the verdict of the jury was contrary to or against the weight of the evidence, except he urges that as matter of law the evidence establishes that a notice disputing plaintiff’s claim, was served upon her more than six months before the action Was commenced, and, therefore, that her. claim was barred'by the statute.

Cloyes Hurd, defendant’s testator, died on the 18th day of January, 1900, then being about eighty-seven years old. The plaintiff had resided with, worked for and taken care of him continuously for twenty-five years up to the time of his death. During the last years of his life, he being in feeble health, she performed the duties of nurse, and they constituted the only members of the household. So far as appears, she served him faithfully, and their relations were always friendly and agreeable.

Concededly for the services rendered the plaintiff received, or was entitled to receive, two dollars per week, but the defendant claims she had been fully paid for the same by the deceased. Plaintiff’s claim, as finally presented to the executor, included about $100 alleged to be due and owing to her on account of her weekly W'ages. It also included a balance of $400 which she claimed was owing to her under an oral agreement made years before the testator’s death, the exact date not appearing, by which, as alleged, the deceased promised and agreed that if the plaintiff would remain with and care for him until his death, she should be entitled to receive $1,000 in addition to her weekly wages. There was alsb included in the claim as presented a promissory note for $300 dated November 2, 1899, executed by the deceased and payable to the plaintiff with use one year after date. It is claimed by the plaintiff that this note was given to her by the deceased to apply upon the $1,000 agreement; also, that shortly previous to his death he gave her a check for $300, to be applied in the same manner, leaving a balance due her by virtue of said alleged agreement of $400. The defendant contended in snbstance that the check for $300 was given by the deceased and received by the plaintiff in full payment of all demands; that the promissory note was without consideration, and that the alleged agreement to pay $1,000 was never made.

The chief question of fact, so far as the genuineness of plaintiff’s claim is concerned, involves the proposition as to whether the $1,000 agreement was made. The plaintiff sought to prove such agreement by three witnesses, each of whom testified in substance that upon one occasion he or she heard the deceased admit in answer to a question put, or suggestion made by the plaintiff, that he had made such an agreement, and by two other witnesses that he admitted there was $400 due thereon, or that $600 had been paid on the same. Such witnesses only assume to give the merest- fragDients of such conversations, in most instances simply disconnected remarks of- the deceased, always made in response to a suggestion made by the plaintiff. . The testimony offered by the plaintiff to prove that the agreement in question was made is not entirely satisfactory, and we would conclude that it was subject to the criticism stated in Hamlin v. Stevens (177 N. Y. 39), and so not of sufficient probative force to establish the agreement, were it not for the fact that the defendant’s testimony given upon cross-examination strongly tends to corroborate plaintiff’s claim in the premises. He testified : “ I know, a matter of fifteen, sixteen or seventeen years ago, father offered to give her $1,000 if she would stay as long as he lived, and if she would sign a contract.” Ho contract was signed, but the plaintiff did stay, and we think the fair inference is that she stayed because of the promise which the defendant says his father made, even although the execution of a written contract, was not insisted "upon.

Upon all-the evidence — and we have only called attention to the more prominent features—we think this court ought not to interfere with the finding of the jury that the agreement was made and that the other items of plaintiff’s claim were valid, because contrary to or against the weight of the evidence.

The evidence, howe'ver, wholly fails to support the finding necessarily involved in the' verdict that the notice disputing plaintiff’s claim specified in section 1822 of the Code of Civil Procedure was not served upon her more than six months before this action Was brought.

Coneededly the testator died on the 18th day of January, 1900. On January 29, 1900, the executor began the publication of notice to creditors to present- their claims against the estate. About the twenty-sixth day . of July the plaintiff presented her claim,-as finally prepared, .to the executor, and he claims that on the sixteenth day of August following he caused a notice in writing in due form to be personally served upon her, by which he disputed said claim and offered to refer the same. The action was not begun until eight months and ten days after the date when it is alleged such notice was served. If so served, coneededly the action is barred by the. statute, and the learned trial court so charged the jury.

The evidence given upon this issue is remarkable in that it very clearly indicates that the attorney of record for the plaintiff, who took part in this trial and also upon a former trial, had personal and positive knowledge that such notice had been served upon his client, arid still was in the attitude of'urging in the court below and before this court that such notice had not in fact been served.

Briefly, the testimony upon that issue is as follows: Mr. Trolius, 0. Koons, who is an attorney and counselor of this court, testified positively that he prepared upon his typewriter the notice Exhibit “ H ” in duplicate for and at the request of Mr. Henry G. Adams, the attorney of record for the defendant, and that he delivered both to Mr. Adams. He positively identified Exhibit “ H ” as being the notice made, and was .equally positive that the other was an exact duplicate. Mr. Adams testified that he received such notice in duplicate from Mr. Koons; that he then signed them both as attorney and gave them to the defendant, who also signed both as executor, making .each an original notice; that after carefully comparing them he delivered them on the 16th day of August, 1900, to one George Gurney, a constable at North Evans, N. Y., where all the parties resided, and directed him to serve the same upon the plaintiff; that he saw the constable go across the street where the plaintiff resided with such notices in his hand, saw him hand„a paper to the plaintiff and immediately return the other to the witness; that the one so returned is Exhibit H,” and has been in possession of. witness ever since.

The constable ■ testified that he received the notices from Mr. Adams on the 16th day of August, 190Ó; that he compared the same and immediately went. across the street where plaintiff was, handed one to her • and returned the other, Exhibit H,” to Mr. Adams; that the one delivered to plaintiff was a duplicate of Exhibit “H.” - ' '

But this is not all. Mr. Adams testifies that shortly after such notice was served upon the plaintiff, at-the req'uest of her attorney, he went tq his office in the city of Buffalo, and that he then saw the notice which he had signed and which was an exact duplicate of Exhibit “ H’,’ in the possession of plaintiff’s attorney. He also testifies that after the expiration of six months from the date of service of - such notice, plaintiff’s attorney called upon him and asked him to waive .such service and the statute which had run against plaintiff’s claim by reason thereof; that plaintiff’s attorney made several similar requests, all of which were refused. Mr. White, plaintiff’s attorney, does, not attempt to contradict.Mr. Adams; was not sworn as a witness either upon this or the former trial, although Mr". Adams had testified' practically as above indicated upon both. The plaintiff hardly testified that a duplicate of. Exhibit “H.” was not served upon her. Indeed, she admits that a notice entitled “In Surrogate’s Court ” and "signed by Henry Adams was -served upon "her at the -time claimed by the defendant; but she states that as- she recollects it did not contain the wprd “ dispute ” or “ reject,” and that, therefore., it" was not a duplicate of Exhibit “ H.” Her testimony in that regard, in view of the other evidence to which attention has been called, is not sufficient-to malee an issue of -fact. Indeed it is established practically beyond doubt that the notice in question was served upon the plaintiff; that her attorney of record knew that fact; that it had been "delivered" to. him and presump-’ ti-vely was in his possession when he was Urging in the court below arid upon' this appeal that it had never been served.

It follows that the judgment and’ order appealed from should he reversed and a new trial ordered, with costs to the appellant to abide event; upon -questions of fact.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, .upon, questions of fact.  