In re the Judicial Settlement of the Intermediate Account of Proceedings of Moodie , 223 N.Y.S. 318 ( 1927 )

Slater, S.

The main item in the bill of the claimant Mary Kerslake is for services rendered. The testimony was clear, and it is not denied that the services were rendered by the claimant as housekeeper, cook and as practical nurse in the home and office of the physician, the testator herein. The executrix contends there was no agreement to pay for services rendered, other than by the board of the claimant and her husband. The evidence is ample, clear and convincing that the testator agreed to pay for services rendered. There is no rule of law that the claimant’s contract must be in writing. The issue before the court is upon a quantum meruit basis. (Matter of Bayles, 108 Misc. 117; Matter of Otis, 126 id. 741; Matter of Wood, 193 App. Div. 473; McKeon v. Van Slyck, 223 N. Y. 392.) Testimony in support of the claimant to pay, by entirely disinterested witnesses, is to the effect that the testator would see to it that the claimant was paid in that after a few years he would see to it that she would have a home of her own. Some of the witnesses went so far as to say that the decedent had agreed to give her the home that he was living in. The husband of the claimant received his board, for which it appears in return he acted as furnaceman, took care of the lawn, shoveled snow, etc. The evidence offered by the executrix was statements made by the claimant, admitted by the court as against her interest. The fact is they are mainly statements quite in harmony with the understanding between the claimant and the doctor, as testified by the witnesses for the claimant, except the testimony of the witness Yelsor. The testimony against interest from the estate witnesses, except Yelsor, was that the claimant was receiving no salary. That is true; the agreement did not contemplate a set monthly wage. The claimant did not have to tell every person that she talked with and relate the entire circumstances of her employment. Neither is the testimony against her interest in accepting a fifty-dollar check as a monthly wage in January, 1926, out of harmony with the original understanding. The testator could enter into a further understanding with the claimant and had a perfect right to do so, without jeopardizing the agreement to pay from May, 1921, up to January, 1926. The court cannot believe that the physician, secret in some things, intended to have the claimant work for him for five years as practical nurse, housekeeper and cook only for her board. The husband’s board was worked out by his duties upon the place. The idea of the claimant’s performing all of these recited labors for her board, or even her husband’s board, and bringing her furniture to furnish the house of the testator, fis not supported by a fair preponderance of the evidence. The very nature of the living, the work of the claimant, and the acceptance of the services by the decedent, is all in corroboration of the testimony of the witnesses that decedent intended and had agreed to pay.

Upon the facts of the case -disclosed by the evidence, it is the opinion of the court that the claim was established by a fair preponderance of evidence. (Caldwell v. Lucas, 233 N. Y. 248, 254.) The claimant is entitled to a fair and reasonable compensation for the services rendered by her from May 20, 1921, to March, 1926, a period of fifty-eight months. It is my opinion that the agreement to pay has been proven by unbiased witnesses, and for this service I allow the wage of $125 per month, or $7,250.

There is no evidence in support of an agreement to pay for the use of the furniture. The matter of the furniture was all welded together with the services to be performed by the claimant. She was to come with her family and furniture. I disallow any amount for the use of furniture, as the evidence does not support it as a distinct item.

The other items of the bill of Mrs. Kerslake have not been sustained by evidence and, "consequently, are disallowed.

The claim of Katherine Hergenham, a claimant, is allowed at $108.