Morone v. Morone , 412 N.Y.S.2d 684 ( 1979 )

— Appeal from an order of the Supreme Court at Special Term, entered March 15, 1978 in Albany County, which granted defendant’s motion to dismiss the complaint. Although the parties were never legally married, they reside in the same premises and, since 1952, defendant has publicly held out plaintiff as his legal wife and mother of the two children who were born of their relationship. For a first cause of action, plaintiff alleges that since 1952 she has, at defendant’s request, performed domestic services in his home expecting compensation for which she now seeks recovery. For a second cause of action, plaintiff alleges that in 1952 the parties entered into an oral "partnership agreement” whereby she would perform services of a "domestic nature” and defendant would support and "take care of the plaintiff and do right by her”. Although the profits from the agreement were to be used for the equal benefit of the parties, defendant has allegedly failed, since December of 1975, to support and provide for plaintiff despite her request that he "do the right thing” pursuant to their partnership agreement. Plaintiff accordingly demands an accounting by defendant of all moneys, properties and assets which he has received since 1952. Special Term granted defendant’s motion to dismiss the complaint for failure to state a cause of action, and this appeal ensued. Although "A meretricious relationship would not prevent recovery for services rendered in maintaining the * * * household if there was an express agreement that she [plaintiff] was to be paid” (Matter of Gorden, 8 NY2d 71, 75), plaintiff may not rely upon " 'an implied agreement to pay her for her labor’ ” (Matter of Gorden, supra, p 75, quoting Ehodes v Stone, 17 NYS 561, 562). Thus, plaintiff’s first cause of action must fail because there is no allegation that such an express agreement existed. Plaintiff does not allege that defendant promised to pay her; to the contrary, she merely alleges that she "expected” to receive compensation. The second cause of action is also defective despite the allegation that a "partnership agreement” existed between the parties. Despite the recitation in the second cause of action of the existence of a partnership agreement, it is reasonable to assume that such an agreement is predicated upon the same oral agreement alleged in the first cause of action, which, as noted above, is contextually inadequate to support an action based upon an oral contract. Order affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney and Main, JJ., concur.