The plaintiff, now over sixty years old, and her husband lived for twenty-three years with the deceased, her brother, and a bachelor, in his house. Her children also lived there, and sometimes her grand-children. The deceased was a farmer. She. did ordinary work in the house; she helped in the work of the farm by milking cows and aiding in the dairy; she and her husband and children, and at times other relatives, inmates of the house, all lived together as one family, according to her own statement. There was never, so far as appears, any promise or agreement of any kind made by the deceased to compensate her for her services. At last, the brother died, and then the plaintiff presented a claim that she should be paid for six years’ services, any longer claim being, of course, barred by the statute.
The rule Of law in such 'cases is the plain dictate of common sense. (2 Parson’s Cont., 46; Williams v. Hutchinson, 3 Comst., 312.) When parties'live together in such manner as the evidence in this case discloses, each is every day doing services for the other; each, too, is receiving every clay from the others all the compensation which is expected. Such persons are not working for future pay; and they do not in fact expect it. No one for whom the services arc rendered, expects that pay will ever be demanded. Very often the compensation which is received from clay to day, in daily living, is far more than the services are worth. And the person rendering the services would consider it a great hardship not to be allowed to continue in the family. And often the claim for compensation springs up only after the death of the person on whose estate it is made. When, after twenty-three years of such living together as one family, a claim, never before heard of, is made, there is the strongest presumption against its validity. It must be sustained, if at all, by positive proof of an agreement to pay for the services, sufficient to overcome the presumption that the services were fully compensated every day by the benefits received. Mere performance of the services is not enough. It must be affirmatively shown that there was an agreement to pay for them.
In that respect the proof hr this case totally fails. Furthermore, the circumstances show affirmatively that the plaintiff never *136expected any payment, other than such as she was constantly receiving. These circumstances have been already, in part, briefly stated. There is the further circumstance that the plaintiff' held a note against the deceased. We may suppose that if she had really had this large claim for services, she would have obtained some note or memorandum for that also. '
There is another objection. The plaintiff is a married woman; her husband was entitled to her services and her earnings. He had not relinquished his claim to them; nor was she carrying on a business for herself. She was doing the ordinary work done by women in similar circumstances in a household, of which household her husband was a part. (Beau v. Kiah, 4 Hun, 171.)
The judgment must be reversed, a now trial granted and the reference discharged, without costs of appeal to either party; unless the plaintiff in twenty days stipulates to deduct from, the recovery $900. If she so stipulate, the judgment on the reduced amount is to be affirmed, without costs to either party.
Present — Learned, P. J., and Boaedman, J.Ordered accordingly.