SUPREME COURT.

#### Sarah A. Pursell, respondent, agt. John Fry and another, as executors of Richard Hinds, deceased, appellants.

*Wxecutors*— *action*against— *Costs—when allowed and when not—When a legatee under a will competent witness in action against executors to prone employment of plaintiff Try deceased father—Statute of limitations*— *Simple admission by plaintiff of defendant’s counter-claim takes a case out of the statute—Married -woman*— *when her earnings belong to her and are recoverable by her.*

In an action by plaintiff, against the executors of her father, to recover for her services performed for the deceased, at his instance and request, on the trial, in support of her claim, she called Mrs. Boyd, one of her sisters, a legatee named in the will of their deceased father, and she gave evidence tending to establish an employment of plaintiff by deceased, and an agreement to pay her wages if she would go to the house of the deceased testator and take charge of the housework and *318personally care for his wife, their mother, who was afflicted with paralysis. Subsequently in the case, her husband, Mr. Boyd, was called, and gave evidence tending to support an agreement to pay wages, and tending to show several payments made by the deceased on account thereof:

*Held,*that Mrs. B. was not “called in her own behalf or interest,” and was, therefore, competent as a witness in behalf of plaintiff.

*Held,*also, that the husband, Mr. B., was a competent witness.

The legacy given to the plaintiff by the testator cannot be deemed a satisfaction of the plaintiff’s claim for services, as there is nothing in the case to justify an inference that such was the intention of the testator.

Where one enters into the service of another, such service continuing for many years, the master paying various sums of money from time to time on account of such services:

*Held,*that the payments made were acknowledgments of the indebtedness and sufficient to take the whole claim out of the statute of limitations.

*Held,*further, that the claim of the plaintiff, at any and all times, for previous services, was an entire account, and she could have maintained but a single cause of action thereon; and that a payment by the intestate upon the balance due the claimant took the entire balance out of the operation of the statute.

Interest is not recoverable upon an unliquidated demand for services performed for the testator, where there was no price or time of payment stipulated between the parties, or to be inferred from the facts, and where there is no proof of any usage on the subject.

Where the plaintiff, at the time she entered into the service of the testator, was a married woman, but she had separated from her husband and was supporting herself, and, apparently, never received any further attention or support from her husband after her separation from him:

*Held,,*that, under such circumstances, her earnings belonged to her, and were recoverable by her, and not by her husband.

Where the claim was presented to the executors for $1,151.50, which the executors rejected and offered to refer, and under a stipulation of the parties the same was referred, the plaintiff recovering only $674, there being no proof of bad faith or mismanagement on the part of the executors:

*Held,*that plaintiff was not entitled to recover costs against the executors, and that her rights were limited to the referee’s and witness fees, and other necessary disbursements, to be taxed according to law.

*Fourth Department, General*Term, January, 1880.

The plaintiff presented her claims for her services. performed for the deceased, at his instance and request, to his *319executors and they disputed it and rejected it and a reference was agreed upon and approved by the surrogate. A motion was made to confirm the referee’s report and for costs, and it was granted at special term.

A motion was made, upon a case and exceptions, to set aside the report, and denied at special term.

The defendants appeal from such order and the judgment entered therein.

*Charles M. Williams {Fanning &*Williams), for appellants, argued:

I. The evidence of Mrs. Boyd, a legatee under the will, was improper; it was a “personal transaction” *(Fisher agt. Verplanck, Ex.,*17 *Hun,*151; *Somerville*agt. *Crook,*9 *Hun,*667; *Denham*agt. *Jayne,*3 *Hun,*614; *Rowell*agt. *Van Sicle,*6 *Hun,*115; *Baldwin*agt. Smith, 5 *Hun,*454; *Kerr*agt. *McGuire,*28 *N. Y,*452).

II. The rule of section 399, old Code, has not been changed by section 829, new Code. Interest in the *event*is the test; otherwise *cross-exa/rmimation*would be an examination in her own behalf *(Throop’s Cods, notes, foot of page*162; *Gifford*agt. *Sackett,*15 *Hun,*79; *Le Clare*agt. *Stewart,*8 *Hun,*127, *and note to*2 *Abbot's New Cases,*8-12).

III. The same rule applies as to “ conversations overheard ” by witness. The evidence was as much “ a personal transaction ” as the other *(Simmons*agt. *Sissons,*26 *N. Y.,*277; *Lobdell*agt. *Lobdell,*36 *N. Y.,*333*and Cary*agt. *White,*59 *N. Y,*331, *were distinguished im Brague*agt. *Lord*[41 *N. Y. Superior Ct.,*193; *S. C.,*67 *N. Y.,*498] *and*2 *Abb. Few Cases,*1-12). We claim that an ordinary *conversation*cannot be *split up into parts.*The *whole dialogue*must be given, and it being “ personal ” in part was inadmissible *(Lobdell*agt. *Lobdell,*32 *How.,*1-13; 67 *N. Y.,*498, *supra,; Howell*agt. *Taylor,*11 *Hun,*215).

IY. The testimony of Boyd, husband of legatee, was likewise inadmissible. He was “ interested” ( *Warne*agt. *Dyett,**3202 *Edwd. Ch.,*497; *Hasbrouck*agt. *Vandervoort,*9 *N. Y.,*153-161; *Hosack*agt. *Rogers,*8 *Paige Ch.,*229-242; *Throop’s note to*830 *new Code).*

*Y.*Plaintiff being a married women cannot maintain this action. The common-law rule is not changed by the enabling statutes. In the absence of evidence, her husband will he presumed to he with her when she returned to housekeeping in 1873. The husband, alone, can maintain this action *(Beau*agt. *Kiah,*4 *Hun,*171; *Carpenter*agt. *Weller,*15 *Hun,*134; *Cuck*agt. *Quackenbush,*13 *Hun,*108 ; *McKavlen*agt. *Bresslin,*8 *Grey [Mass.]*177).

VI. The presumption of *“ domestic relation*” was not overcome, and prevails. Expectation of pay on both sides was not shown *(Wood on Master and Servant,*115, 121-127; *Sherley*agt. *Vail,*38 *How. Pr.,*409; *Dye*agt. *Kerr,*15 *Barb.,*444; *Williams*agt. *Hutchinson,*5 *Barb.,*122 ; *Conger*agt. *Van Aernum,*43 *Barb.,*602; 15 *Hun, supra; see, also,*9 *American R.,*559; 47 *Penn. St. R.,*534; 29 *Penn. St. R.,*465; 16 *Vermont,*150; 25 *N. J. Eq.,*150; *Robinson*agt. *Cushman,*2 *Denio,*119-122).

VII. The referee’s findings are not conclusive. The general term have power, and it is their duty, to examine the whole evidence *(Nason*agt. *Luddington,*19 *A. L. J.,*179 ; *Godfrey*agt. *Moser,*66 *N. Y.,*252; *Meyer*agt. *Beach,*14 *Hun,*235; *Finch*agt. *Parker,*49 *N. Y.,*1-8.; *Hubbell*agt. *Meigs,*50 *N. Y.,*480; *Townsend Mfg. Co.*agt. *Foster,*51 *Barb.,*346-350).

VIII. The legacy left to plaintiff will be deemed, in law, a satisfaction of her claim *(Eaton*agt. *Benton,*2 *Hill,*576-580). The evidence all points to a future reward, viz., the legacy *(Sherley*agt. *Vail,*38 *How. Pr.,*409).

IX. The statute of limitation applies to services prior to 1871. The services of plaintiff were, in any event, from year to year and are not continuous account *(Davis*agt. *Gorton,*16 *N. Y.,*255 ; *Conger*agt. *Van Aernum,*43 *Barb.,*602-605), otherwise it would be void under statute of frauds, not being *321in writing, as not to be performed in one year (3 *R. S. [6th ed.], p.*142). The simple admission by plaintiff of $158 of defendant’s counter-claim does not create a payment or make an account *(Fisher*agt. Verplanck, 17 *Hun,*151, 152; *Cuck*agt. *Quackenbush,*.13 *Hun,,*108; *see, also,*5 *Bosworth,*226, 234.)

X. There was nothing proved in the nature of an *ackmowbedgment*or a *new promise.*Payment is not decisive but only a matter of evidence *(Pickett*agt. *King,*34 *Barb,*193; *Harper*agt. *Farley,*53 *N. Y.,*442.) Testator kept no accounts. His books contained accounts with his son, but none with plaintiff. The case is distinguishable, therefore, from *Smith*agt. *Viele*(60 *N. Y.*377) where an account was kept. The case of *Bogert agt. Morse*(1 *N. Y.*377) applies to *strangers*only. Here the *“ domestic relation*” continues; even grant that the admission of counter-claim was for money paid, *non seguitwr*that it was upon an account. It should be construed as money given for necessaries in the domestic relation.

XI. The referee entirely overlooked $150 and $250 received by plaintiff from testator. There is no escape but that this $400 should be applied. *“ A*fact presented and overlooked does not justify the judgment and avoids the referee’s conclusions of law ” *(Briggs*agt. *Boyd,*56 *N. Y.,*289; *Caswell*agt. *Davies,*58 *N. Y.,*223, 229).

XII. It was error to allow interest *(Godfrey*agt. *Moser,*5 *T. & C.,*677; *Holmes*agt. *Rankin,*17 *Barb.,*454; *McKnight*agt. *Dunlap,*4 *Barb.,*36, 37).

XIII. It was error to allow costs. Only disbursements are recoverable. The claim was reduced nearly one-half (3 *R. S. [6th ed.], p.*97, *sec.*52 [41]; *Old Code, sec.*317; *Pinkernelli*agt. *Beschoff,*2 *Abb. N. C.,*107; *Carhart*agt. *Blaisdell, Executor,*18 *Wend.,*531; *Cruikshank*agt. *Cruikshank,*9 *How. Pr.,*350; *Buckhardt.*agt. Hunt, 16 *How.,*407; *Wooden*agt. *Bayley,*13 *Wend.,*453; *Comstock*agt. *Olmstead,*6 *How.Pr.,*77) .

*322XIY. The judgment and order should be reversed and new trial ordered before another referee.

*Horace McGuire,*for respondent.

Hardin, J.

In support of the plaintiff’s claim she called •one of 'her sisters, a Mrs. Boyd, and a legatee named in the ■will of their deceased father, and she gave evidence tending to establish .an employment of the plaintiff by the deceased :and an .agreement to pay her wages if she would go to the house of .the deceased testator and take charge of the house-work and personally care for his wife, their mother, who was ¡afflicted with paralysis.

This evidence was objected to upon the ground that she was not competent to give evidence relating to personal trans- . actions with her deceased father against his executors.

The objection was overruled and an exception taken by the defendants.

We think the ruling of the learned referee was correct *(Code of Civil Procedure, sec.*829; *Hill*agt. *Alvord, 4th dept., op.*Hardest, J.; *Albina Ely*agt. *Clute, opinion*Talcott, P. J., *decided October,*1879). She was not “called in her own behalf or interest.”

Subsequently, in the case, her husband, Mr. Boyd, was called and gave evidence tending to support an agreement to pay wages, and tending to show several payments made by the deceased on account thereof.

His evidence was objected to and received, and an exception taken.

Por the .reason already stated, it is apparent that his wife was competent as a witness in behalf of the plaintiff, and, ■therefore, he was not incompetent.

Section 830 of the Code of Civil Procedure was repealed in 1878.

We.think the evidence given by the Boyds, and by others (competent to speak, .abundantly established (1) the original *323employment of the plaintiff by the testator (2); his agreement to pay her wages (3); the performance of the services by her for the period allowed to her by the referee (4), and that her wages were worth the price allowed therefor by the referee.

We cannot infer from the language found in the will of the deceased, or from any oral evidence given upon the trial, that the legacy given to the plaintiff by the testator was intended as a payment and satisfaction for her wages while in his employment.

We cannot, therefore, deem it a satisfaction of the plaintiff’s claim for sevices *(Boughton, Ex.*agt. *Mary Flint, Ex.,*74 *N. Y.,*477).

The referee has found that the plaintiff commenced work in May, 1867, and continued work up to the 18th of September, 1877, with the exception of two absences, and that the aggregate time worked was eight years or 416 weeks.

This finding is supported by the evidence. He also finds that no specific price for such service was agreed upon, and that the services were worth two dollars per week.

The evidence supports these findings.

When the plaintiff presented her claim to the executors, she stated several credits, amounting, in the aggregate, to $158. When the executors had rejected the claim, and a reference under the statute had been agreed upon, the executors made up a statement of their counter-claim, and in it they charged her with several sums of money as having been advanced and paid to her by the deceased in each of the years embraced in the period of time covered by the services.

Upon the trial, the plaintiff admitted “so much of the counter-claim, as stated in the executors’ list of items,” as embraced cash received by her in 1867, and each successive year down to and inclusive of 1877, amounting, in the aggregate, to $158.

These cash payments were allowed to the defendants, and $158 deducted by the referee from the aggregate of the *324plaintiff’s services, and a balance struck of $674; and judgment ordered for that sum, with interest from the 24th of October, 1878.

It is insisted, by the learned counsel for the appellants, that the statute of limitations should have been allowed as a bar to any recovery for services accruing more than six years prior to the death of the testator.

We think this argument is unsound.

(1.) The payments made by the testator were acknowledgments of the indebtedness, and sufficient to take the whole claim out of the statute *(Rich*agt. *Niagara Savings Bank,*3 *Hun,*481; *Miller*agt. *Talcott,*46 *Barb.,*167, *Bowe*agt. *Gano,*9 *Hun,*6).

(2.) The claim of the plaintiff, at any and all times for previous services, was an entire account and she could have maintained but a single cause of action thereon, and that “ a payment by the intestate upon the balance due the claimant took the entire balance out of the operation of the statute” *(Smith*agt. *Viele,*60 *N. Y.,*106).

We think the referee erred in allowing interest from October 24, 1878, to- the date of his report, April 12, 1879. He has found that no price was agreed upon for the wages.

There was no admission of any balance due at the time the account was presented to the executors; on the contrary they rejected the whole demand.

It was unliquidated. There was no express agreement to pay interest; not any implied agreement, from custom or otherwise, shown to arise, and, according to the authorities, no interest was recoverable until the amount of the claim was ascertained and liquidated, as it was not capable of being ascertained by computation thereby *(Glass Factory*agt. *Reed, 3 Cow.,*393; *S. C.,*5 *Cow.,*589, *approved and followed in Holmes*agt. *Rankin,*17 *Barb.,*456; *McMahan*agt. *Erie R. R. Co.,*20 *N. Y.,*469; *Smith*agt. *Viele,*60 *N. Y.*106; *Godfrey*agt. *Moser,*5 *Thompson,.*677; 75 *N. Y.)*We must order a new trial unless the plaintiff stipulate to deduct *325from the judgment the interest upon the amount of the recovery ($674) from October 24, 1878, until the date of the report, April 12, 1879.

The evidence of Mrs. Boyd as to the $250 advanced in 1877 did not establish an indebtedness of the plaintiff, it simply established a gift.

The same observations are true in respect to the evidence given by Mrs. Bailey as to the $150 referred to in 1873.

The plaintiff, at the time she entered into the service of the testator, was a married woman; she had separated from her husband and was supporting herself, and, apparently, never received any further attention or support from her husband after her separation from him.

Under such circumstances her earnings belonged to her and were recoverable by her and not by her husband *(Chapter*172 *of Laws of*1862; *Brooks*agt. *Schwierin,*54 *N. Y.,*343; *Adams*agt. *Houness,*62 *Barb.,*326; *Birbeck*agt. *Anthony,*74 *N. Y.*356).

It was competent for her to make a bargain with the testator for her services and for compensation therefor, and after she had performed, it was too late for him or his executors to repudiate the bargain and refuse to pay her the fair value of her earnings (62 *Barb.,*supra; *Willits*agt. *Sun Mutual,*45 *N. Y.,*45).

We come now to consider the order awarding costs against the executors payable out of the estate.

(1.) The claim was presented to the executors, 24th of October, 1878, for $1,151.50.

(2.) The executors rejected it, November 21, 1878, and offered to refer.

(3.) December 9th, of 1878, a stipulation was entered into by the parties to refer and the reference was approved by the surrogate and on the tenth of December an order was entered referring the claims, &c.

(4.) The plaintiff recovered only $674.

(5.) The referee finds and certifies that the executors acted *326with prudence and in good faith in resisting the plaintiff’s claim and for the sole purpose of administering their trust faithfully, and for the purpose of protecting the estate.”

(6.) There was no proof of bad faith or mismanagement presented to the special term.

(7.) It appears that the price of the wages was not agreed upon by the plaintiff and the testator, and that witnesses differed largely as to value of the services.

The plaintiff charged and claimed three dollars per week.

The referee finds the value of the services two dollars per week.

Under such circumstances, we think, the plaintiff was not entitled to recover costs, and that her right was limited to the “referee fees and witness’s, and other necessary disbursements to be taxed according to law ” *(Section*317 *of Code of Procedure; Packeraell*agt. *Bischoff, 2 Abb. New*Cases, 107; *Olmstead*agt. Olmstead, 6 *How.,*77; *Fort*agt. *Gooding,*9 *Barb.,*388; *Buckhosit*agt. *Hunt,*16 *How.,*407; *Cruikshank*agt. *Cruikshank,*9 *How.,*350; *Carhat*agt. *Blaisdal, Ex.,*18 *Wend.,*521; 2 *R. S., sec.*41, *page*88 ; *Wooden*agt. *Bagley,*13 *Wend.,*453).

The special term erred in awarding costs to the plaintiff, and the order must be modified by striking out so much thereof as awards costs to the plaintiff, and allowed to stand so far as it awards referee fees, witness fees and necessary disbursements to the plaintiff, and as so modified, affirmed.

We must reverse the judgment and order a new trial before another referee, with costs of the appeal to abide the event, unless the plaintiff shall stipulate to reduce the judgment by striking out the interest on $674 from October 24, 1878, to April 12, 1879, in which case the judgment and order of confirmation of the referee’s report will be affirmed as so modified, with costs of this appeal.

Talcott, P. J. and Smith, J., concur.