FIRST DEPARTMENT, JUNE TERM, 1894. [Vol. 79. sir; I supposed it meant the same thing. Q. No; we want her exact words. She said that she had no hope of getting well? A. Yes, sir. Q. And did she use the word 'hope?' A. Yes, sir; I am sure she did. Defendant's Counsel: Now, are you absolutely sure that she made use of that expression? A. She did; she said that; but she might have said it in a little different words. The Court: Q. Now, that is what we want. If it was in different words, counsel is entitled to them? A. I think I did say before what she said, that she hoped to get well, but she believed she would not get well. I think those are the words that I used. She had no chance I believe no chance. The Court: Q. Then you don't say that she said 'hoped?' A. No, sir; 'no chance to get well;' that is it. Defendant's Counsel: Q. Then you now change the wording of the declaration as heretofore given by you? A. I don't know; I don't know whether I change it or not. Q. You change it now, in accordance with your last answer? A. I don't know that I change it; I forget what I said before. Q. Very well; what did she say in regard to her hope of recovery? Now, the exact words? Don't answer the question immediately, but think and give us the exact words that she said? A. She said that she would like to recover. 'I would like to live, but I know I can't live,' or 'I have no—' just let me think a moment 'but I know I can't.' I think that was the word. Q. Then you are not sure as to the exact words? A. I will remember it in a minute or so. I will think. She said, 'Mamma, I would like to live, but I know I can't live, to show you what a good girl I could be yet.' Q. Did she say that she expected to die then? A. Yes, sir; that she knew she couldn't live. Q. Did she say how long she expected to live? A. No, sir; no one could tell that. Q. She didn't make the statement, then, to you with death immediately staring her in the face? You were not under the impression that she was going to die as soon as she uttered the words? A. Well, I was under the impression that she would die at any minute. Q. Well, was she under that impression, from your conversation? A. Well, I think she must have been, or she couldn't speak like that. She wouldn't make use of that if she didn't think so. Q. Well, she didn't say anything that indicated that she expected to die immediately? A. Well, she didn't give me the minute or the hour. She said that she believed that she would Hun.] FIRST DEPARTMENT, JUNE TERM, 1894. die. Q. That she could not live? A. Yes, sir. Q. She didn't say that she had no hope of recovery? A. No, sir; I don't believe that she said that. Q. She didn't say when she expected to die? A. No, sir; I don't think she could say that. Q. Did I understand you to say that, at this time, she could get up and go around the room? A. If we let her; she was so strong; she was so strong up to the very last." The trial court, at the close of the examination, ruled that the declarations were admissible, and having in mind that experience induces appellate courts to appreciate the superior opportunities afforded to a trial court for rightly passing upon the sufficiency of preliminary proof, I have reached a different conclusion only after careful consideration and consultation. I am unable, after reading the evidence, to say that I am convinced that Miss Manzoni had no hope of recovery when she made the declarations to her mother. It is true that she said, "Mamma, I believe I am going to die; I would like to live to show you what a good girl I could be, but I know I won't have the chance." The tone of voice and accentuation with which this sentence was delivered would not unlikely have enabled the listener to determine whether she was wholly without hope of recovery. But neither the trial court nor this court had any assistance of that character. Those words could well be spoken by one dreading and fearing a fatal termination, and yet having hope that her usual good health and strength of body would enable her to pass the crisis safely. 66 It does not appear that prior to that time she had been told by any one that there was no hope for her. Indeed, it does not appear that she had been warned that the result of her illness might prove fatal. It appears from the mother's answers on cross-examination that at the moment of making the declarations she was very strong so strong that she could get out of bed if we would let her herself." This was three days before her death, and from that time until almost her last hour her physical strength seems to have been remarkably well sustained. Is it likely that one so young and strong, without warning from any source, would abandon all hope? Possibly; but it will not be presumed; it must be proved. Instead, we find the witness testify FIRST DEPARTMENT, JUNE TERM, 1894. [Vol. 79. ing that "she said that she hoped to get well, but she believed that she would not get well," a statement which would have been sufficient under the old rule, as we have observed, but wholly inadequate to meet the requirements of the one now established and rigorously enforced by the courts. Other portions of her testimony, it is true, tended to show that she could not recall that her daughter had said that she hoped to get well. But the fact that she contradicted herself in that and other respects does not tend to strengthen the confidence of the court in her testimony, upon which the People solely relied as a foundation for the admission of the declarations so far considered. This is said in no unkindness, for it is easy to understand that a grief-stricken mother would not be able to accurately recall the words of her child, delivered under the circumstances surrounding the interview about which she testified. Especially so, when at the time she did not appreciate the necessity of carefully treasuring up every word and act, in order that ultimately they might tend to subserve the ends of justice. I advise a reversal of the judgment, Judgment affirmed. LOUISA STOKES, Appellant, v. LAURA PEASE, as Executrix, etc., of Action by a married woman for services—when maintainable — presumption that her services belong to her husband — agreement that services shall be provided for by will. Under the provisions of section 2 of chapter 90 of the Laws of 1860, and of The common-law presumption that the services of a wife belong to her husband Hun.] FIRST DEPARTMENT, JUNE TERM, 1894. APPEAL by the plaintiff, Louisa Stokes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of January, 1894, upon the report of a referee appointed under section 2718 of the Code of Civil Procedure. T. McCants Stewart, for the appellant. William E. Wyatt, for the respondent. FOLLETT, J.: Since some time anterior to February 1, 1888, the plaintiff has been a married woman, residing with her husband at No. 125 West Twenty-seventh street. Mrs. Mary Ann Banks, a widow, and the plaintiff were sisters. For many years prior to her death Mrs. Banks was a paralytic and unable to care for herself. From February 1, 1888, until August 1, 1891-three years and six months she was cared for by the plaintiff as a member of her family, at No. 125 West Twenty-seventh street, under an agreement made with the plaintiff that she would give and devise her property to the plaintiff. April 15, 1893, Mrs. Banks died leaving a will which was probated June 2, 1893, and letters testamentary thereon were issued to the defendant. Testatrix left an estate of $1,300. On the 16th of June, 1893, the plaintiff presented a claim for twenty dollars a week for her services as nurse from February 1, 1891, which was rejected, and the claim was referred pursuant to the statute. There is no dispute about the facts of the case. It was proved that the testatrix agreed with this plaintiff to compensate her for her care by bequeathing to her her property. That the care was rendered is conceded, together with the fact that nothing has been paid therefor, and that the testatrix bequeathed no part of her estate to the plaintiff. The referee dismissed the claim and ordered a judgment against the plaintiff, upon the theory that she being a married woman her services belonged to her husband, and that they could not be recovered in her own name. In this, under the facts proved, we think he erred. Section 2 of chapter 90, Laws 1860, provides: "§ 2. A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, HUN-VOL. LXXIX. 39 FIRST DEPARTMENT, JUNE TERM, 1894. [Vol. 79. and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used or invested by her in her own name." Chapter 381 of the Laws of 1884 provides: "§ 1. A married woman may contract to the same extent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary." Under these statutes if a married woman, with the knowledge of her husband, renders services to a third person, pursuant to a contract for compensation, she may maintain an action to recover the price agreed or the value of the services rendered. (Adams v. Curtis, 4 Lans. 164; Sheldon v. Button, 5 Hun, 110; Snow v. Cable, 19 id. 280; Rowe v. Comley, 11 Daly, 317; Matter of Kinmer & Gay, 14 N. Y. St. Repr. 618; Brooks v. Schwerin, 54 N. Y. 343; Birkbeck v. Ackroyd, 74 id. 356.) In addition to the express contract between the plaintiff and the testatrix it appears that the former was engaged in business on her own account as a laundress, and it was shown on the trial that she was compelled to hire extra service because her time was occupied in caring for her sister. The contract and the facts bring this case within those above cited and without Reynolds v. Robinson (64 N. Y. 589; 82 id. 103) and Coleman v. Burr (93 id. 17). The common-law presumption that the services of the wife belong to the husband exists, notwithstanding the statutes above cited, but under them the presumption may be rebutted, and it was in this case. When services are rendered under an agreement that compensation for them shall be made by will, which is not done, the value of the services may be recovered against the decedent's estate. (Robinson v. Raynor, 28 N. Y. 494; Reynolds v. Robinson, 64 id. 589.) The judgment should be reversed and a new trial granted before a referee to be appointed by this court, with costs to the appellant to abide the event. O'BRIEN and PARKER, JJ., concurred. Judgment reversed, new trial ordered before a referee to be appointed by this court, with costs to appellant to abide event. |