#### REUEL D. DARLING, Appellant, *v.*LAWRENCE W. HALSEY, as Executor, etc., of CATHARINE A. BERWICK, Deceased, Respondent.

*Services*— *when promise to pay for, will be*implied..

The testatrix, who was an invalid, resided for the last eighteen months of her life with the appellant, who owned and was accustomed to exercise horses. Ho frequently took her to ride with him in the park, sometimes at her special request, she saying that it would do her more good than medicine. The testimony tended to show that she intended to pay for the services, and by her will she directed “ that the friends with whom I board, and my physician, to whom I feel under great obligations of gratitude for their kindness, be liberally paid for their services to me.” *Held,*that the appellant was entitled to receive a reasonable sum for the services he had rendered.

Appeal from a judgment in favor of the defendant, entered on the report of a referee.

*Wm. H. Meeks,*fór the appellant.

*Drnid J. H.W illcox,*for the respondent.

The mere rendering of services does not establish any liability to pay for them. To constitute a valid contract to do so, the minds of both parties must have assented thereto. *(Among*v. Flyn, 10 Johns., 102; *Dunbar*v. *Willianns,*id., 219; *Bartholomew*v. *Jackson,*20 id., 28; *Utica Ins. Co.*v. *Bloodgood,*1 Wend., 6521) No contract to pay will be implied unless the circumstances clearly indicate it. *(.li/omgston*v. *Ackeston,*5 Cow., 531; *Qriffi/n*v. *Potter,*11 Wend., 209; *Maltby*v. *Ilarwood,*12 Barb., 173; *Moore*v. *Moore,*3 Abb. C. A. Dec., 303; *Cra/ne*v. *Baudoume,*55 N. Y., 256.) And a request to render the services will not by itself establish a contract to pay for them. *{Crane*v. *Baudoime,*55 N. Y., 256; *Buck*v. *Amidon,*11 How. Pr., 320 ; *Boyd*v. *Bappington,*1 Watts, 219'; *Veitch*v. *Bussin,*3 Ad. *&*Ell. [N. S.], 927.) Where services are rendered by one member of a family to another there is a presumption that they were rendered gratuitously. *(Wilcox*v. *Wilcox,*18 Barb., 327; *Moore*v. *Moore, supra; Bobinson*v. Cushman, 2 Den., 119 ; *Wil*
      *91
      *Hams y.*Hutchinson, 5 Barb., 122, 124; *Dye*v. Kerr, 15 id., 444; *Sturley*v. *Bermett,*6 Bans., 512; *Uoojo&r*v. Twrner, 2 Hun, 515 ; *Van Kuren*v. Saxton, 3 id., 547; *Bowen y.*Bowen, 2 Bradf., 33G.)

Daniels, J.:

Tbe judgment in this case was recovered upon a report made in a reference to determine tbe justice of a claim made for services performed for tbe testatrix, and even though it may not have been brought before tbis court in a strictly regular manner, it should still be determined on its merits, as tbe appeal itself has not been set aside. Tbe testatrix boarded with tbe appellant for about eighteen months previous to her decease. She was an invalid lady, and while she boarded with tbe family of tbe appellant be frequently took her riding in tbe park with him. Tbe evidence of Maria Donohue established tbe fact that tbis occurred at times at tbe request of tbe testatrix, who remarked that tbe riding would do her more good than medicine. Her evidence also showed that tbis continued to tbe period when she could not leave her room, and extended to as much as 200 times. Tbe evidence given by tbe wife of tbe appellant was to about tbe same effect. It also showed that there was an expectation on the part of tbe testatrix that tbe appellant should be paid for bis services, and by tbe first paragraph of her will tbe testatrix directed “ that tbe friends with whom I board and my physician, to whom I feel under great obligations of gratitude for their kindness, be liberally paid for tlieir services to me.” Tbis evidence was not contradicted or in any way whatever impaired in its force, and it would seem to leave but little, if any, room for doubt on tbe subject of tbe liability of tbe estate to remunerate tbe appellant.

Although be owned and exercised horses, it is not to be supposed that be would have taken tbe testatrix so often with him while she was an invabd boarder at bis bouse without expecting some compensation for bis services, and her will showed that she participated in tbe same expectation.

Her explicit direction was that her friends with whom she boarded should be liberally paid for their services for her. She made no distinction whatever as to tbe services referred to by her, but included them all alike, and those for which compensation *w'aa*
      *92claimed in this proceeding constituted an important portion of them. The case was not one in which it was to be presumed that the services were intended to be gratuitously performed. She was a mere boarder, dependent upon the comforts she could secure by making an equivalent return by way of compensation, and the presumption is that she expected and designed to pay for what was supplied to her at her instance, and expressed or implied requests. The services performed, in taking her upon these rides, were as meritorious as the right of payment for her board. She was taken out for the benefit of her health, and at times in compliance with her own express request, and while she had no other claims upon the attention and time of the appellant than any other invalid boarder would have had. The referee should have allowed Jiim what her will contemplated he would receive, reasonable payment for the services he had performed. The decision was not only against the evidence, but really without evidence to support it.

The judgment should be set aside and a new trial ordered.

Davis, P. J., and Brady, J., concurred.

Judgment set aside. New trial ordered;