
    ALMIRA CUCK, Appellant, v. MILTON QUACKENBUSH, as Executor of DAVID QUACKENBUSH, Deceased, Respondent.
    
      Services rendered by ma/rried ‘woman — ■ husband must maintain action foi' — Mutual account — proof of.
    
    This action was brought by the plaintiff, a daughter of David Quackenbush, deceased, against his executor, to recover for services rendered by her in attending upon her father during his last illness, she being then married and living with her husband. Seld, that the husband, and not the plaintiff, was the proper person to bring the action.
    She also claimed to recover for services rendered before her marriage, to which the statute of limitations was pleaded. To remove the bar of the statute, she proved an account in which she had charged her father with the services and credited him with various amounts, the credits being for such articles as a- father would naturally give to a daughter living with him, although of age. No account was kept by her father. Seld, that the simple presentation of an account containing such credits to the executor was not sufficient; that an account of her father against her should be regularly proved, in order to have the effect of taking the case out of the statute,
    
      Appeal from a judgment in favor of defendant, entered upon tbe report of a referee.
    
      B%i/nd/y & Soramlwig, for tbe appellant.
    
      S. S. Burnside and J. IB. Keyes, for tlie respondent.
   OSBORN, J.:

.Tbe plaintiff, wbo is a daughter of David Quackenbusb, presented a claim against bis estate, to tbe defendant, tbe executor, and claimed there was due to her thereon for principal and interest nearly tbe sum. of $3,000; with tbe exception of a few dollars, this amount was made up as follows: For her services in working for her father and in bis family for twelve years, from 1850 to 1862, after she attained her majority and before her marriage ; also for some forty days’ service after her marriage in attending ujDon her father in his last illness, this last service rendered in 1873. Tbe executor rejected tbe claim and it was by consent duly referred by tbe surrogate of Otsego county, to Hon. Edwin Countryman, as sole referee to hear and determine tbe same. As to any claim for services rendered by plaintiff before her marriage, tbe learned referee held that tbe same was barred by tbe statute of limitations, while as to the claim for services rendered after her marriage, she could not recover for the reason that such claim belongs to her husband and that be only could maintain tbe action for that, and as a conclusion of law that defendant was entitled to judgment. Judgment was entered and'plaintiff appealed therefrom to this court.

Tbe plaintiff insists that tbe referee erred in bolding that tbe statute of limitations attached to any portion of tbe demand in question, for tbe reason that there was an open, mutual and subsisting account between tbe parties through all these years, for articles furnished to her by her father, and also for $500 paid by him to her in 1870, on account of this labor.

As to tbe money paid, it would seem to be entirely clear that tbe claim that ’it was paid on account of this work, or that it can be regarded as a charge tending to establish an open account, is entirely unwarranted. A receipt for such money was given back, signed by tbe plaintiff and her husband, and speaks of it as money advanced by bina, deceased, to apply to ber portion of bis estate, as an beir at law. It bad no reference to any account or 'demand sbe bad. It was a simple advancement, or in tbe nature of an advancement. After tbe plaintiff attained ber majority, sbe lived with ber father and in bis family as before, and was treated as before; tbe residue of tbe account claimed by way of credits seems to be for clothing and so forth, just such articles as a parent would naturally furnish to a daughter living with him, although over age. It is not pretended that tbe deceased ever kept any account against bis daughter. It is one presented by tbe plaintiff, with tbe evident purpose of avoiding tbe statute of limitations. But tbe pretended account was not proved. Tbe account as presented to tbe executor contained these credits. This was offered in evidence and rejected. If plaintiff desired to prove any account of ber father against ber, so as to show an open, mutual, subsisting account, sbe was certainly obliged to make proof of it in tbe ordinary way of proving an account. Simply crediting him on ber account with articles furnished would not answer, when sbe was tbe one trying to establish tbe credit. In tbe case of a promissory note, outlawed except for an indorsement of payment, such payment must be proved. Not so where it is not necessary to rely on tbe payment to keep tbe note alive. So in this case. Her claim was barred unless deceased bad an open account against ber. Can sbe prove it by simply offering a paper of ber own production on which sbe has given such credits ? It seems to me clearly not. There was then no proof before tbe referee, of any account on behalf of tbe father against tbe plaintiff, and tbe proof offered was clearly incompetent and properly rejected. This being so, tbe referee committed no error in bis refusal to find as requested.

As to tbe claim for services rendered after ber marriage I see no reason for not following tbe decision of Beau v. Kiah (4 Hun, 171), bolding that for such services tbe husband must bring tbe action. (See also Birkbeck v. Ackroyd, 11 Hun, 365; N. Y. Weekly Digest, 4th vol., 576.)

Tbe fact that tbe executor was willing or offered to pay plaintiff thirty-five dollars on ber claim as presented for services, etc., and in payment thereof, does not change tbe legal rights of these parties. Sbe did not accept it. He may have thought she was entitled to recover for ber services rendered after ber marriage and in ber own name. But tbis does not make it so; or be may bave thought it advisable to pay something, rather than involve bis estate in litigation. It is enough to say that plaintiff refused to accept tbis sum, and tbe parties now stand precisely as though no such offer bad been made.

I bave looked at tbis case with care — bave examined tbe evidence and tbe authorities cited — and am unable to see that any error has been committed by tbe referee in bis conclusions of fact or law.

Tbe judgment appealed from must, therefore, be affirmed, with costs.

LeaRned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.  