(77 Hun, 14.)

#### ROOT V. STRANG.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Evidence—Weight and Sufficiency.

On an issue as to the genuineness of the signature to a note, witnesses testified that they saw the maker sign the note at a certain place. There was evidence that the maker was not at suck place at that time. *Heldr*that the evidence was sufficient to establish the genuineness of the signature, as the witnesses may have merely made a mistake as to the time at which they saw The maker sign.

2. Negotiable Instruments— Note Payable at Death of Maker.

In an action on a note given by defendant’s testator to plaintiff for services rendered, evidence that testator frequently visited plaintiff, and remained at her house several weeks at a time; that on some of such occasions he was quite feeble, and plaintiff cared for him,—is sufficient evidence of a consideration for the note, as it is not necessary that the value of the services should equal the amount of the note.

8. Same—Services Rendered without Express Promise of Payment.

The validity of a note given for services is not affected by the fact that, the services were rendered without an express promise to pay.

4. Husband and Wife—Right of Wife to Recover for Services Rendered.

In an action on a note given for services rendered by plaintiff, a married woman, defendant cannot raise the objection that plaintiff’s husband alone was entitled to compensation for her services, where it appears that the husband saw the note given and signed it as a witness.

Appeal from circuit court, Monroe county.

Action by Margarett A. Boot against John B. Strang, as executor of Collins Woodruff, deceased, on a promissory note. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the conn., defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ„

J. B. Adams, for appellant.

H. F. Remington and M. Fillmore Brown, for respondent.

HAIGHT, J.

This action was brought upon a promissory note, of which the following is a copy:

$10,000. Looneyville, August 1, 1889.

In consideration of valuable services rendered to me, I promise to pay my niece, Margarett A. Root, or order, ten thousand dollars, at or after my decease. Collins Woodruff.

The above note executed by me, and delivered to my niece, Mrs. Margarett A. Root, of Looneyville, New York, I do hereby declare to be given to compensate her for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my homo with, her, at her residence, in Looneyville; & I deem the amount of said note-hut a just and adequate compensation for all her long-continued services, kindness, & devotion to me, in sickness and health, during my life.

Dated August 1, 1889. Collins Woodruff.

Witness:

Chester A. Root.

Margarett A. Root.

Margarett S. Root.

Henry McDermitt.

*274The principal issue of fact litigated upon the trial was as to the genuineness of the signature of the defendant’s testator, and we arc asked to review the determination of the jury upon that issue. It appears that the instrument was drawn by the late Alfred Ely, of Eochester, at the request of the defendant’s testator; and the persons signing as witnesses thereto, with the exception of the plaintiff, each testified that they saw him sign the same, at Looneyville, on the 1st day of August, 1889, and deliver it to the plaintiff. There is evidence on the part of the defense tending to show that Woodruff was not in Looneyville on the 1st day of August; that on that day he was in Eochester. It is quite possible that the plaintiff’s witnesses are mistaken in reference to his being in Looneyville on that day. We are aware that mistakes in reference to dates are liable to occur. The instrument, as we have stated, was drawn in Eochester by Mr. Ely, and the date, August 1st, appears to be in his handwriting. - It may be that it was drawn on the day of its daté, and was not taken to Looneyville by Woodruff until the next day. But this fact, if such it be, would not, in our judgment, seriously impair or affect the testimony of the plaintiff’s witnesses in reference to the signing of the instrument by Woodruff, or his delivery of the same to the plaintiff. There, consequently, is evidence that sustains the finding of the jury upon this branch of the case.

As to whether the finding of the jury is against the weight of evidence, we do not think the question is before us for consideration. Much of the testimony of the expert witnesses has been omitted from the case, and none of the exhibits with which they made comparisons were produced before us. We, consequently, are not in a position to consider the evidence, or to determine the weight or the effect it should have upon the verdict.

It is contended that the note is invalid, the defendant claiming that there is an inadequate consideration to support it. The note itself recites the consideration “of valuable services rendered.” The instrument which follows ' fc declares it to be given to compensate the plaintiff “for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my home with, her, at her residence, in Looneyville.” In Carnwright v. Gray, 127 N. Y. 92, 27 N. E. 835, it was held that an instrument by which the signer agrees to pay to another a sum certain at a time specified after his death, is a valid promissory note; that it is not necessary to its validity that a consideration be expressed therein, or proved in an action thereon; that the instrument imports a consideration, and the burden of showing a want thereof is upon the defendant. Has the defendant in this case shown a want of consideration? The testator, at the time of making the note, was aged, and in feeble health. He had no children, and his wife had died some years before. The plaintiff was the niece of his wife. It is apparent from his letters that he regarded her with much affection," and that he had on various occasions visited her at her home, and there remained several weeks at a time. The evi*275deuce further tends to show that on some of these occasions he was quite feeble, and that the plaintiff cared for him. There is therefore evidence of some consideration, and this, we understand, is sufficient. In Worth v. Case, 42 N. Y. 362, the plaintiff had nursed and tended the defendant’s testator through a severe illness, and upon his recovery he delivered to her a sealed envelope superscribed with her name, and the addition, “This is not to be unsealed while I live, and returned to me any time I wish it,” signed by him. After his death she opened the envelope, and found therein his promissory note for $10,000, payable to her on demand. It was held that she was entitled to recover the amount against the estate of the testator. In Earl v. Peck, 64 N. Y. 596, it was held that mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a defense to a promissory note. In that case the defendant’s testator had taken, by mistake, a fatal dose of aconite, and, being aware of his approaching death, executed and delivered to the plaintiff, his housekeeper, a promissory note for $10,000. The consideration expressed was “for services rendered.” It was held that the note was valid, although the amount was greater than the value of the services rendered. See, also, Cowee v. Cornell, 75 N. Y. 92, 98. It is claimed that these cases are not decisive of the question involved in this case, for the reason that the plaintiff’s services were rendered without any express promise on the part of Woodruff to pay therefor. It dose not appear to us that there is force in this contention; for, after the services were performed, Woodruff recognized the plaintiff’s labor as valuable, and agreed to pay therefor by delivering the instruments in question.

It is further contended that the plaintiff had no right to receive compensation for her services; that her services belonged to her husband; and that he, alone, was entitled to the compensation,— and in support of such contention the defendant calls our attention to Blaechinska v. Howard Mission, 130 N. Y. 497, 29 N. E. 755; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Coleman v. Burr, 93 N. Y. 17. But it does not appear to us that these cases are in point. The plaintiff’s husband stood by, and saw Woodruff pay the plaintiff for the services she had rendered. He subscribed the instrument by which the payment was made. He thus acquiesced in the payment to his wife, and thereby surrendered to her any right thereto which he might have had. This view renders it unnecessary to enter upon a consideration of the relation existing between husband and wife as to services rendered by her. These questions have been considered by this court in the cases of Burley v. Barnhard, 9 N. Y. St. Rep. 587, and Stamp v. Franklin, 12 N. Y. Supp. 391.

We have examined the exceptions taken to the admission and rejection of evidence, but find none which we think requires a new trial. The judgment and order appealed from should be affirmed.

DWIGHT, P. J., and LEWIS, J., concur. BRADLEY, J. not sitting.