I dissent upomthe ground that there- is no evidence which proves or tends to prove that any payment was made by the decedent upon plaintiffs “ claim ” against his estate, and, therefore, that said claim, except that portion of it which arose within a period of six years prior' to the. commencement of the action, is barred by the Statute • of Limitations, except • as the time within which "such action may be commenced is extended by section 40.3 of the Code . of Civil Procedure. Whether the .action' was commenced within the time prescribed by the statute is purely a question of law and should be determined without-reference to the fact, assuming it to be true,.ás stated in the prevailing opinion,-that the claim is not fictitious, “not one which cannot Withstand the scrutiny and investir gation justly meted, out to demands against the representatives of a decedérit, but one that is meritorious and reasonable in the compensation charged and presented by one on whom the testator (the deceased) confidently relied.” The rule which should control the deter mination .of the question at law in that regard was very clearly stated by the late Judge Eabl in the case of Crow v. Gleason (141 N. Y. 489, 493), as follows : “In order to make a money payment a part payment within the statute, the burden is upon- the «’editor to show that it was a payment of a portion of the admitted debt, and that it'was paid to and accepted by him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay. the remainder. Bart payment of a debt is .not of itself conclusive to take the case out of the statute. In order to have that effect it must not only appear that the payment was made on account of a debt, but also on account of the debt for which actitin is brought, and that the payment was made as a part *403of a larger indebtedness, and under such circumstances as warrant a jury in finding an implied promise to pay the balance.”
The evidence does show that during the period the plaintiff was in the employ of the decedent he paid to her moneys at different times. Some of such payments were concededly. presents. Others of them represented amounts which were due and owing to her by reason of transactions wholly independent of any claim for services rendered to the decedent by the plaintiff. We think the evidence wholly fails to show that any payment so made was made in part payment for services rendered; that it would be the merest speculation to say that any payment shown by the evidence to have been made to the plaintiff was not a gift, or did not have reference to some' other transaction than a payment to apply upon her claim for services. The evidence does establish conclusively that the services complained for were rendered; that they were rendered under circumstances which were disagreeable and antioying to the plaintiff; that she was faithful in the discharge of' her duties as the decedent’s employee; but we fail to discover how, under the law, such circumstances can have any bearing upon the question as to whether or hot a payment had been made upon such claim by the deceased at such time as would prevent the statute running against it within the rule stated by Judge Earl. If the services had been rendered under circumstances entirely agreeable and of the most congenial character, and 'even at the solicitation of the decedent, the question here presented, to wit, whether such claim was barred by the Statute of Limitations, would be in no manner changed. But as bearing upon the merits it can hardly be improper to suggest that it is somewhat singular that the decedent, a man with an estate of nearly a quarter million dollars, and with his traits of character, should have permitted an indebtedness to accumulate against him for over $7,GOO, extending over a period of fifteen years, in favor of the plaintiff, a poor girl, who-had entered into his employ at his earnest solicitation, the inducement being that she could earn more money in such capacity than by teaching school.'
Upon the evidence in the case the natural desire is that the plaintiff should succeed; that she having spent so many years of her life in service so disagreeable to her and at the same time so useful and' essential to the decedent, should be liberally compensated. We *404think,- however, that those circumstances or conditions should have no influence in determining the question of law whether the claim presented or any paYt of it w;as barred by the -Statute of Limitations, because if not, then a claim which is less meritorious so far as the. rendition of the services and the character of such services is concerned, mtist likewise be. held not to be barred by the statute: , Wé think the record will be searched in vain for evidence tending to show that a single payment of money was made by the, decedent to the plaintiff to apply upon the .claim in question, “ and that it was paid to and accepted by him (her) as such, accompanied by circumstances amounting to an absolute, and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.”
Wé think that it should be held as matter of law that the plaintiff did not show herself entitled to recover for services rendered for the decedent beyond the time limited by the Statute ■ of Limitations, and, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.-
Judgment affirmed, with costs.