Ellen Noonan Ralley, Respondent, v. Michael P. O'Connor, as Executor, etc., of Luis F. Sass, Deceased, Appellant

Ellen Noonan Ralley, Respondent, v. Michael P. O’Connor, as Executor, etc., of Luis F. Sass, Deceased, Appellant. Actionby a servant for wages—she need riot prove their non-payment — testimony by her that she was employed by the defendant’s testator — absence of an exception thereto prevents a reversal. In an action to recover for personal services, alleged to have been rendered by the plaintiff as a domestic servant in the family of the defendant’s testator, it is not incumbent upon the plaintiff to establish non-payment. In such a case it is improper for the court, over the objection of the defendant, to allow the plaintiff to testify that the arrangement under which she worked in the testator’s residence was made with the testator and" that his wife was present at the time, but, in the absence of an exception to the ruling of the court, the Appellate Division will not reverse a judgment in favor of the plaintiff because of such error. Van Brunt, P. J., dissented. Appeal by the defendant, Michael P. O’Connor, as executor, etc., of Luis F.- Sass, deceased, from a judgment of the Supreme Court in favor of the- plaintiff, entered in the office of the clerk of the county of New York on the. 3d day of February, 1902, upon the verdict of ■a jury, and also from an order entered in said clerk’s office on the 31st day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes. Robert P. Harlow, for the appellant. John C. Gulick, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: From a judgment in an action for personal services claimed to have been rendered by the plaintiff as a domestic servant in the family of the defendant’s testator, and from an order denying a motion for a new trial, .the defendant appeals: But two questions are presented. " The first relates to the proof required to support the action. It is alleged in the complaint that during a certain period the services for which compensation is sought were rendered, that they were of a certain value, and that a balance of the amount owing for such services has not been paid. The defendant contends in an elaborate argument that, it being necessary for the plaintiff to prove a breach of the contract, and that breach consisting in the non-payment of the money, it was incumbent upon the plaintiff to show that payment had not been made. The discussion of that subject, so far as this court is concerned, is foreclosed by what we decided in the cases of Hicks-Alixanian v. Walton (14 App. Div. 199) and Matter of Rowell (45 id. 324), in which it was held that proof of non-payment was not required to be made by a plaintiff in cases of this character. It is further argued by the defendant that error was committed by the court below in allowing the plaintiff to testify to certain matters which it is claimed come within the inhibition of section 829 of the Code of Civil Procedure. The plaintiff had proven by the testimony of the testator’s widow that for some years the plaintiff had acted in the capacity of a domestic servant in the household of the testator; and proof was also given by another witness that the plaintiff had acted for some months in the same capacity in the testator’s household. After that testimony was given the plaintiff was put upon the stand, and she testified that she had lived in the testator’s house. She was then asked the question “ With whom were your arrangements made for working in 56 West 39th street ? ” (that being the place of residence of the defendant’s testator). An objection was taken to that question; the witness was allowed to answer it, but no exception was taken by the defendant’s counsel. The Avitness answered that the arrangement was made with the defendant’s testator and that his wife was present at the time. Had an exception been taken to this ruling of the court, the error in admitting the evidence might require a reversal of the judgment, but as that was not done we cannot disturb it. There is nothing further in .the case requiring special consideration, and the judgment and order appealed from must be affirmed, with costs. O’Brien, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., dissented. Judgment and order affirmed, with costs.