
    Simonson v. Simonson.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Master and Servant—Compensation—Evidence.
    While plaintiff was employed by defendant and others, as executors of a will, he performed for defendant individually, at his request, services of the same nature as those which he rendered the estate under the employment. The parties were related, but did not form one family. There was no evidence of an agreement that the work was to he gratuitous. Held, that a verdict for plaintiff would not be disturbed.
    
      2. Same.
    The omission of plaintiff to present his claim until after he had left the employment of the executors will not preclude a recovery by plaintiff, but is merely a fact for the consideration of the jury.
    Appeal from circuit court, Kings county.
    Action by Alanson R. Simonson against Alfred L. Simonson. Judgment was entered on a verdict for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Blair cfr Rudd, for appellant. A. H. Ammidown, for respondent.
   Barnard, P. J.

The evidence shows that the plaintiff rendered valuable

service to the defendant, and upon his express request. The service was, in general terms, the collection of rents, and procuring tax-bills, and directing and overseeing repairs upon real estate of the defendant’s wife. The value of the services is proven to be very much greater in amount than the verdict of the jury. Although the parties are related, they did not form one family, and there is therefore nothing to call for a conclusion that the service was done gratuitously on that account. The plaintiff was an employó of an estate, of which the defendant was one of the executors. There were two others, and the plaintiff was employed in the office of the estate, according to a wish expressed by the testator in his will. The- services in question were rendered during the time he was so employed, and the defendant claims that the services were rendered under the general employment, and were of the same nature as those rendered the estate under the employment. Smith v. Railroad Co., 102 N. Y. 190, 6 N. E. Rep. 397, is an authority that a person in the employment of a firm may render service during business hours to another party, and may recover for the work sd done. The fact is to be considered with respect to the question whether it was gratuitous. The.request was made to the plaintiff to do the work, not by the executors, but by an individual. The subject of the service was not the estate property, but the property of the defendant or his wife. It is neither proven nor claimed that the estate suffered in consequence of the work done by plaintiff for defendant. It is neither proven nor claimed that there was any express agreement that the work was to be gratuitous. Under this circumstance, the law implies a promise to pay. Ross v. Hardin, 79 N. Y. 84.

The omission to present the claim until after the plaintiff left the office of the executors was a fact which existed in the case Of Smith v. Railroad Co. The court of appeals held it not to be a fact sufficient to cover a judgment for the service. At most it was a question for the jury, and the jury, on all the evidence, has found that the service was not gratuitous. The judgment should therefore be affirmed, with costs.  