
    
      In re application of Robert B. Gardner, Adm’r, etc.
    
      (Court of Appeals,
    
    
      Filed November 23, 1886.)
    
    1. Statute op limitations—Right op action on contract obligation— When barred.
    The effect of the statute of limitations is to prevent one who neglects to enforce his right of action upon a contract obligation or liability, whether express or implied, from doing so after the expiration of six years from the time the cause of action accrued.
    
      2. Same—General hiring—Payment not postponed until end op service.
    Where there is no express agreement as to the time or measure of compensation for services, nor any evidence of usage in respect thereto, the engagement will be taken as a general hiring, but the law will not imply an agreement that compensation shall be postponed until the termination of the employment, and recovery can only be had for six years prior to-the commencement of the action.
    3. Same—Mutual open accounts—When not barred.
    In cases when there are open mutual accounts between the parties, if the last item is within six years it draws items beyond that period.
    Appeal from judgment of supreme court affirming order of the surrogate of Tompkins county, denying the application of an administrator for leave to sell real estate to pay the debts of his intestate.
    
      H. V. Howland and George E. Goodin, for appl’t; William D. Tuttle, for respd’t.
   Danforth, J.

The only claim which justified the appliwas one presented in favor of Lucy 0. Gardner, a. sister of the deceased, for house-keeping or housework \ and in regard to that the surrogate found that the claimant began to perform valuable services for her brother, at his request and as his servant, on or about November 1, 1843, and continued to perform such services until his-death, on or about November 1, 1882, a period of 39 years ; that they were worth a certain sum per week, varying in amount in different years; and that, to apply on “those services, the deceased paid the claimant two dollars in the spring of 1879, and thirty dollars in the fall of that year “and that he had paid her a little money occasionally,” —-“every few years some,”—but that “the particular times or amounts of such payments were not stated or shown and holding, as matter of law, that the statute of limitations precluded a recovery for any service rendered more than six years before the payment made in the spring of 1879, he gave judgment for the residue only, viz., for services rendered during six years prior to April 1, 1879, and from that time to the death of the deceased—in all, nine years.

In cases of this character there is often great difficulty in getting at the truth, so as to adjust fairly the rights of both parties. But here every question has been settled to their satisfaction excepting that relating to the application of the statute of limitations. The effect of that statute is to prevent one who neglects to enforce his right of action upon a contract .obligation or liability, whether -express or implied, from doing so after the expiration of- six years from the time the cause of action accrued. Here there was no express agreement as to the time or measure of compensation, nor any evidence of usage in respect thereto, and I am unable to find any circumstance to distinguish the claimant’s casé from that decided by this court in Davis v. Gorton (16 N. Y., 255), where it was in substance held that a similar indefinite engagement was to be taken as a general hiring ; but that the law would not imply an agreement that compensation should be postponed until the termination of the employment, and a judgment which had been rendered on the opposite theory was reversed. It did not appear in that case that any payments had been made; but in Gilbert v. Comstock (93 N. Y., 484), that fact was in evidence, and an allowance for six years prior thereto was justified. That circumstance was present in the case at bar, and the same effect has been given to it. We think the claimant can require nothing more.

In Smith v. Velie (60 N. Y , 106), on which the appellant relies, there were . open mutual accounts between the parties, and, while that condition of things continued, the statute was no bar ; for, in such a case, if the last item is within six years, it draws after it items beyond, that period. In the absence of an express agreement as to time of payment, the law will, no doubt, presume that the parties contracted in reference to the usage prevailing in respect thereto in that kind of employment, and, when shown, it would be taken into account; but here, as before suggested, none is proven. The witnesses, indeed, estimate the value of the services at a certain sum per week, and such is the finding of the referee, and from that it might perhaps be inferred that weekly payments were usual in such cases ; but, however that may be, both reason and authority repel the implication that, under such a general contract as the present, payment was intended to be delayed until the end of service.

We think, therefore, that the appeal fails, and the judgment should be affirmed. ■

All concur. 
      
       Affirming 35 Hun, 663 mem.
      
     