75 N.Y.S. 856 | N.Y. App. Div. | 1902
Two conflicting theories were presented by the evidence, and the jury, after listening to a charge to which the defendant took no ■exceptions, has resolved the facts in favor of the plaintiff. The conclusion is fully supported by the evidence and the verdict in the ■absence of reversible error must be conclusive.
The plaintiff, as the assignee of a claim for services rendered by ■one Thomas B. Jones, an attorney and counselor of this court, brings this action to recover a balance of $100 alleged to be due him upon a contract between Hr. Jones and the • defendant, by which the latter undertook to pay to the former the sum of $300 for services in the conduct of two certain actions for slander, the details of which are not material to this discussion. The defendant has paid, and is credited with $200 on this account, though he contends that the contract of employment was for $100, and that the other $100 was for disbursements. But upon this point the jury has passed, and it has found that the contention of the plaintiff is the true one.
The defendant urges that he was entitled to a dismissal of the •complaint, because, as he alleges, the action shows upon its face that it was prematurely brought. The complaint alleges that “ between the first day of July, 1899, and the first day of October, 1899,” ■certain services were rendered to the defendant. The summons in the action was served on the sixteenth day of September, 1899, and the complaint was verified on the tenth day of October, and the ■defendant urges that by this form of pleading the way was left open to prove services down to and including the first day of October, and that the right of action had not fully matured at the date of serving the summons. The complaint, however, alleges on informa
Defendant’s, attorney appears to have a- profound conviction that under the rule laid down in Whitehead v. Kennedy (69 N. Y. 462, 466) his client has been deprived of some right- upon the trial of this action-, but we are unable to find - any reason for holding that this is a case to come within that most wholesome rule; The rule'is
It does not seem to be necessary to follow this case farther; we have examined the questions presented and we do not find error. The judgment should not, therefore, be disturbed.
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.