Martin v. Bronx County Trust Co.

O’Malley, J. The judgment in favor of the plaintiff, wife of defendants’ testator, is predicated upon the implied promise by the testator to pay her for services rendered in connection with the management and operation of two rooming houses owned by the testator. These houses consisted of an apartment for the use of the plaintiff, the testator and his family, together with a store and sixteen rooms devoted to rooming house purposes. Plaintiff’s evidence was to the effect that her services consisted of maintaining the rooms and buildings in a clean condition and in taking charge of the renting of the rooms and the collection of rents and that she performed such services unaided for a period of some four years, and with the assistance of another woman, for an additional four years. Assuming without conceding that services rendered by a wife on behalf of her husband might be of such extraordinary nature as to imply a promise in law, we are of opinion that the services here rendered were not of such an exceptional character as to warrant a finding of any agreement upon testator’s' part to pay compensation. (Briggs v. Devoe, 89 App. Div. 115; Whitaker v. Whitaker, 52 N. Y. 368; Reynolds v. Robinson, 64 id. 589; Porter v. Dunn, 131 id. 314; Matter of Callister, 153 id. 294; Stevens v. [247] Cunningham, 181 id. 454, 458.) It was held in the case last cited “ that notwithstanding the enabling statutes conferring valuable personal and property rights upon married women, they have no effect upon those duties which a wife owes to the husband at common law in the marriage relation.” It follows that the judgment so far as appealed from in favor of the plaintiff should be reversed, with costs, and the complaint dismissed, with costs. Finch, P. J., Sherman and Townley, JJ., concur; Merrell, J., dissents and votes for affirmance.