Van Kuren v. Saxton

Gilbert, J. The plaintiff is a sister of the defendant’s wife. She had been married to one Perry, but obtained a judgment for an absolute divorce against her husband on the 3d of October, 1868. [567] In July or August preceding, she, with her two children, went to the defendant’s to live, and there they remained several months as members of his family. On the 21st of October, 1868, the defendant borrowed of the plaintiff $300, and gave her his note therefor. The defendant made several payments on the note. This action was brought to recover a sum due on that1 note, and the defendant pleaded as a set-off a claim for the board of the plaintiff and her children. The referee found that the plaintiff performed services for the defendant while a member of his family, and that the defendant furnished board for herself and children during that time; that the value of such board exceeded her services in the sum of $348, but that such services were rendered, and such board was furnished upon the mutual understanding between the parties that neither should make any charge therefor. He therefore rendered a judgment in favor of the plaintiff for $217, being the balance due upon the note. We think the finding of the referee is correct. The evidence shows that the plaintiff became a member of the defendant’s family on the invitation of his wife, and with his assent, and that she was expected to remain with her children until she could do better. Ho intimation was given by either party that pecuniary compensation should be made by one to the other, nor did the defendant make any claim for board until after the plaintiff had left him, nor until she sought to enforce payment of the balance due upon the note. The inference from the circumstances therefore, that the plaintiff did not occupy the position of a servant to the defendant, and that she was not received into his family as a boarder, is very strong if not conclusive. Transactions of this kind between relatives stand on a different footing than those between persons who are not bound to each other by such ties. In the latter ease the law may, in the absence of special circumstances, imply mutual promises to pay, while in the former it will not. Robinson v. Cushman, 2 Denio, 152; Williams v. Hutchinson, 3 N. Y. 312; S. C., 5 Barb. 122; Sharp v. Cropsey, 11 id. 224; Wilcox v. Wilcox, 48 id. 327. The judgment should be affirmed. Judgment affirmed.