In re Meehan

Varnum, S. One of the exceptions to the report of the referee is to the allowance of a claim of the sister-in-law of the decedent for services which she performed for him as his housekeeper, general domestic servant and j anitress for over eleven years previous to his death. The evidence satisfactorily establishes that these services were actually performed and that they were so performed in pursuance of an agreement previously entered into by her and the decedent. Ho payment was ever made on account of them and no acknowledgment or promise in writing of any kind whatever was ever signed by the decedent in reference to the claim in question. 'It is objected by the exceptant that the defense of the S'tatute of Limitations, which was interposed as a bar to the recovery for such of the services as had been rendered during the period ending six years before decedent’s death should have been sustained by the referee. The- referee finds that there was a new agreement upon a new and sufficient consideration between the parties, obligating the decedent to pay for the services of the claimant during the last-mentioned period. The only evidence bearing upon the subject which was presented proved that at different times .since the.lapse of such period the intestate had told the claimant that when he should sell certain real estate which he owned he would pay her. How he came to tell her, or whether this statement was made in the course of a conversation, or how it was induced, is not shown. So far as the evidence discloses, it might have been a casual or passing statement made, possibly, to quiet any anxiety that the claimant might have felt as to her being paid, or possibly with the honest purpose of assuring her of payment, but there was nothing said by claimant, nor is there anything in the evidence showing, or from which it could be inferred, that there was any agreement or under [263] standing whatever that the claimant would await the sale of the property mentioned for the payment of her claim. There having been no payment made on account of the claim, nor any such acknowledgment or promise as is referred to in section 395 of the Code of Civil Procedure, and no new agreement upon a sufficient consideration for the payment of the claim, so much thereof as is for services rendered for a period terminating six years before the death of the decedent, is barred by the Statute of Limitations, and the exception to the finding of the referee is, in this particular, sustained. Matter of Gardner, 103 N. Y. 533. There is evidence from which the referee might fairly conclude that it was the intention of the decedent that the savings bank deposit, which was made in the joint names of himself and wife, should go to the latter in the event of her surviving him. The referee’s finding that she was entitled to the deposit is, therefore, sustained, and the exception thereto overruled. McElroy v. National Sav. Bank, 8 App. Div. 192, and cases cited therein; Wilcox v. Murtha, 41 id. 408; Wetherow v. Lord, id. 417. The referee’s report, except as it has been hereinbefore modified, is confirmed. The referee’s and stenographer’s fees have been taxed. Only the parties who joined in the stipulation for the employment of a stenographer by the referee will have to contribute toward the payment of the stenographer’s fees. Referee’s report modified, and, as modified, confirmed.