In re the Judicial Settlement of the Account of Bardin

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Bardin

211 A.D. 291, 207 N.Y.S. 405, 1925 N.Y. App. Div. LEXIS 10615

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 7, 1925

StatusPublished

Cited by1 cases

This text of 211 A.D. 291 (In re the Judicial Settlement of the Account of Bardin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Judicial Settlement of the Account of Bardin, 211 A.D. 291, 207 N.Y.S. 405, 1925 N.Y. App. Div. LEXIS 10615 (N.Y. Ct. App. 1925).

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Opinions

Per Curiam:

The decree rests on an agreement made by the deceased with the father of the claimant during her infancy which agreement has been found by the surrogate to be as follows: “ ‘ If the children [meaning claimant and her young brother] stay here and do what is right by me [meaning deceased] I will will them my property ’ or whichever one stayed.” No other contract is found to have been made. In the year 1911 the claimant married and left the home of the deceased and has not “ stayed ” with him since. The deceased has not, therefore, breached his contract. Had he done so the Statute of Limitations would not apply and the claimant might recover for all .services rendered on the faith of an agreement prior to such breach. There having been no breach of con[292]*292tract' by the deceased claimant is limited to a recovery for services within* the six years immediately preceding his death. (Leahy v. Campbell, 70 App. Div. 127, 130.) He died June 14, 1922. Claimant makes no claim for services later than January 1, 1918, or for a period'of eighty weeks within six years prior to the death of testator. The value of her services during that time has been found to be $3 per week. The decree, therefore, should be modified by reducing her damages to $240, with interest.

All concur, except McCann, J., dissenting with an opinion.

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Per Curiam:

The decree rests on an agreement made by the deceased with the father of the claimant during her infancy which agreement has been found by the surrogate to be as follows: “ ‘ If the children [meaning claimant and her young brother] stay here and do what is right by me [meaning deceased] I will will them my property ’ or whichever one stayed.” No other contract is found to have been made. In the year 1911 the claimant married and left the home of the deceased and has not “ stayed ” with him since. The deceased has not, therefore, breached his contract. Had he done so the Statute of Limitations would not apply and the claimant might recover for all .services rendered on the faith of an agreement prior to such breach. There having been no breach of con[292]*292tract' by the deceased claimant is limited to a recovery for services within* the six years immediately preceding his death. (Leahy v. Campbell, 70 App. Div. 127, 130.) He died June 14, 1922. Claimant makes no claim for services later than January 1, 1918, or for a period'of eighty weeks within six years prior to the death of testator. The value of her services during that time has been found to be $3 per week. The decree, therefore, should be modified by reducing her damages to $240, with interest.

All concur, except McCann, J., dissenting with an opinion.

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211 A.D. 291, 207 N.Y.S. 405, 1925 N.Y. App. Div. LEXIS 10615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-bardin-nyappdiv-1925.

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