Brunner v. Mosner , 101 N.Y.S. 538 ( 1906 )

Scott, J.:

This is an action for personal services. Plaintiff is a cousin of defendant, although a good deal younger than he. When she was about nine years old, living with her mother and stepfather in Bohemia, the defendant, who was married and established in New York city as a butcher, wrote to plaintiff’s mother suggesting that plaintiff should cometo this country and live in- his family. Both parties agree that some such letter was written, but they differ as to its contents, plaintiff claiming that it contained a promise to pay her for her services in the household, while defendant insists that it contained no such promise. '

Plaintiff came to this country aUd entered defendant’s family, being supported and provided for by him, and rendering such services as a daughter of the house might • reasonably be called on to perform. Plaintiff further testifies that when she arrived at the age of fourteen years she told defendant that she wanted to go to work outside and earn money for herself, and that he replied, “I need you in the business and in the".house and I will pay you; ” that he said that “ he gives me $2 a week, and now I am going to work in the store so he will give me $5,” and then she undertakes to quote defendant’s language and represents him as saying : “You are going to work for me in the store and I will give you $5.” It is upon this alleged promise that the plaintiff has recovered for her services at the rate of two dollars per week from the time she entered defendant’s household down to the time she became fourteen years of age, and at the rate of five dollars per week thereafter until she married. The defendant denies the conversation in tolo. The jury h$d the advantage of seeing and hearing the witnesses and the careful and experienced justice who presided at the trial refused to set the ■ verdict aside. These circumstances argue strongly in favor of sustaining the judgment. Considering the circumstances and conditions in which the parties lived it is not incredible that, at fourteen years of age, the plaintiff should have expressed the desire to earn money, and, if she did, it is not unreasonable to believe that defendant offered to compensate her for services "thereafter to be rendered to him. It appears that after the alleged conversation, plaintiff did render services, when required, in defendant’s' shop. She also testified that when she was nineteen, shortly before she was married, she asked defendant for the money which was due her,- and that he said he would give it to her when she was twenty-one, and that she asked him again wheiv she had attained the age of twenty-one, but he then, refused. All"this defendant denies, but he does not deny a conversation testified to by plaintiff’s, husband to the effect that shortly before the marriage defendant said that he would give plaintiff the- money which he'had promised her. There is here some corroboration of plaintiff’s- story that defendant had promised to pay her for her Services, but it' does not even profess to specify any particular smn which was to be paid. We are thus referred back to the only specific promise, to wit, that which is said to have been made when plaintiff was fourteen years of .age. - This is said to have included a promise of payment for .past services at one rate, or for further services at a higher rate. As, to the payment of future services, we consider that it carries, some elements of probability, and in view, of the corroborative testimony above referred to, we think that the verdict was sufficiently supported. As to the promise, said to have been then made, to pay two dollars per week for past services we ■ deem it to be improbable, supported only by plaintiff’s oath, denied by defendant and without corroboration. As to so much of the recovery we do not consider that the plaintiff sustained the burden of proof.

The judgment will, therefore, be reversed and a new trial granted, with costs to appellant, to abide the-event, unless the respondent will stipulate to. reduce -the judgment to $1,715.38, in which event the judgment, as modified and reduced, will be affirmed), without costs:

Patterson, Ingraham, McLaughlin- and Houghton, JJ.,., concurred. .

Judgment and order reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment to $1,-715.38, in which event judgment, as so modified, and order affirmed, without, costs; Settle hrder on notice, )'.