#### TAYLOR v. WELSH.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Parent and Child.—Emancipation.

Where an infant performs services under an arrangement between the employer and the infant’s father, or between such employer and the infant with the assent of the father, that the infant shall be compensated by will, there is, in substance, a relinquishment by the father of all claim for such services, and a permission that the infant, so far as that transaction is concerned, may work on her own account.

2. Witness—Transactions with Decedent. *

In an action against an estate for services, plaintiff is incompetent to testify as to what she did, and as to the time when such services were rendered, under Code Civ. Proc. § 829, prohibiting a party to an action against an executor, eto., from being examined as a witness as to transactions and communications with deceased.

8. Appeal—Harmless Error.

Such evidence is not harmless where it is a serious question in the case whether there was any expectation for payment for the services except *953such as testatrix might voluntarily choose to give, and it appears that, if the services were of the character and extent testified to by plaintiff, it would be a circumstance worthy of some consideration on the question of the promise to pay therefor, though the other evidence is sufficient to support the judgment.

Appeal from, judgment on report of referee.

Action by Leonor Van Etten Taylor against William J. Welsh, executor of the estate of Ann Eliza Stimson, deceased, on a claim against such estat.e for services rendered deceased. Judgment was entered in favor of plaintiff for $310 damages besides costs, and defendant appeals.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

W. J. Welsh, in pro. per.

Arthur More, for respondent. '

MERWIN, J.

On December 13, 1893, the defendant’s testatrix died, being then about 90 years of age. In September, 1894, the plaintiff presented to the defendant a claim against the estate of the deceased in the sum of $320.45 for “services rendered for staying with her from August 4, 1883, to October 4, 1888, making five years and two months, at $1.25 per week.................$345 45

> By cash.............................................. 25 00

> $320 45”

—The defendant doubted the justice of the claim, and thereupon, by stipulation, with the approval of the surrogate, it was, under the statute, referred. In his report the referee finds that from August 4, 1883, to October 4, 1888, the plaintiff attended upon the testatrix, “slept with her nights, done errands for her, emptied ashes, brought in coal, shoveled snow, done a great many things for her, all at her request, and for which she said she would satisfy plaintiff in her will”; that the services so rendered were reasonably worth the sum of $1.25 per week; that the plaintiff, at the time the services were rendered, was an infant residing with and supported by her father, and at the time she completed the services was about 18 years of age; that “the father of this plaintiff, upon the promise made by the said testatrix that she would satisfy plaintiff for said services in her will, consented that the plaintiff might perform such services, and such promise was made by the testatrix direct to the father, and he makes no claim for such services, and never has made any claim for them”; that the testatrix made no provision for plaintiff by her will; that the testatrix, at the time of her death, was indebted to the plaintiff in the sum of $310 for the services so rendered, and the claim was not due till the death; that the payment of the claim was unreasonably resisted by the defendant. As matter of law the referee decided “that the father of said plaintiff, by consenting that plaintiff might perform such services, and be compensated by the testatrix satisfying plaintiff therefor in her will, in effect agreed that plaintiff was to have the pay for the services, so performed as aforesaid for her own use and benefit, and he is es-*954topped from ever claiming pay for said services himself”; that the plaintiff was entitled to recover the sum of $310 and the costs of the action.

It is claimed by the defendant that plaintiff is not entitled to recover, for the reason that at the time the services were rendered she was an infant, residing with and under the control of her father. We are, however, inclined to the opinion that, if the services were performed under an arrangement between the deceased and the father, or between the deceased and the plaintiff, with the assent of the father, that the plaintiff should be compensated by will, this was in substance a relinquishment by the father of all claim for such services, and permitted the plaintiff, as far as that transaction was concerned, to work on her own account. The legacy, if one had been given, would have belonged to plaintiff, and, if so, the debt for which the legacy was to be given should be considered as belonging to her also. See Stanley v. Bank, 115 N. Y. 134, 22 N. E. 29; Kain v. Larkin, 131 N. Y. 313, 30 N. E. 105; Shirley v. Bennett, 6 Lans. 515; Lind v. Sullestadt, 21 Hun, 366; Schouler, Dom. Rel. (2d Ed.) 346. Whether the evidence in the case was sufficient to establish such an arrangement is not necessary here to determine, in -view of our opinion on another feature of the case. At the trial the plaintiff was called as a witness in her own behalf, and was allowed to testify as follows, over objection and exception properly taken that the evidence was inadmissible under section 829 of the Code:1

> “Ques. Did you attend her [the testatrix] in her lifetime, and stay with her nights for a considerable time? Ans. I did. Q. When did you commence? A. August 4, 1883, and I left there on or about October 4, 1888. Q. What did you do there? A. 1 stayed there with her nights, done errands, emptied ashes, brought in coal, shoveled snow, and a great many things. I did many errands for her about town.”

This evidence involved transactions and communications between the plaintiff and the deceased, and very clearly it was within the prohibition of section 829. Campbell v. Hubbard, 38 Hun, 306; Heyne v. Doerfler, 124 N. Y. 505, 510, 26 N. E. 1944; Eoss v. Ross, 6 Hun, 182. It is, however, urged by the plaintiff that without this evidence there is enough in the case to sustain the judgment. The referee, in his finding of the character and extent of plaintiff’s services, evidently followed the testimony of plaintiff. It not only had a material bearing on the question of the value of the services, but also as to the probability of the existence of an arrangement for compensation by will. It was a serious question in the case whether there was any expectation for payment for the services except such as the testatrix might voluntarily choose to give. If the services were of the character and extent testified to by plaintiff, it would be a circumstance worthy of some consideration on the subject of a promise to pay therefor. It should not be said that the evidence *955was harmless. The exception to the admission of this evidence is, we think, a good one and calls for a new trial.

A point is made by the appellant as to the statute of limitations, bnt it is not claimed that that defense would be effective if there was an agreement to compensate by will. Quackenbush v. Ehle, 5 Barb. 472. The appellant also claims that the referee improperly found that the claim had been unreasonably resisted, and so awarded costs. There seems to be some plausibility, at least, to this contention, but it need not be considered now.

Judgment reversed, and new trial ordered; costs to appellant to abide the event. All concur.

1

Code Civ. Proe. § 829, prohibits a party to or person interested in the event, etc., of an action from being examined as a witness against an executor, etc., of a deceased person, as to personal transactions or communications between the witness and deceased, etc.