In re the Judicial Settlement of the Account of Bardin

Per Curiam: The decree rests on an agreement made by the deceased with the father of the claimant during her infancy which agreement has been found by the surrogate to be as follows: “ ‘ If the children [meaning claimant and her young brother] stay here and do what is right by me [meaning deceased] I will will them my property ’ or whichever one stayed.” No other contract is found to have been made. In the year 1911 the claimant married and left the home of the deceased and has not “ stayed ” with him since. The deceased has not, therefore, breached his contract. Had he done so the Statute of Limitations would not apply and the claimant might recover for all .services rendered on the faith of an agreement prior to such breach. There having been no breach of con [292] tract' by the deceased claimant is limited to a recovery for services within* the six years immediately preceding his death. (Leahy v. Campbell, 70 App. Div. 127, 130.) He died June 14, 1922. Claimant makes no claim for services later than January 1, 1918, or for a period'of eighty weeks within six years prior to the death of testator. The value of her services during that time has been found to be $3 per week. The decree, therefore, should be modified by reducing her damages to $240, with interest. All concur, except McCann, J., dissenting with an opinion.