244 A.D. 724 | N.Y. App. Div. | 1935
Order and judgment of the County Court of Rockland county reversed on the law, with ten dollars costs and disbursements, and motion for summary judgment denied, with ten dollars costs. It appears that a motion for summary judgment had been denied and no appeal was taken therefrom. Thereafter the ease was tried, and a judgment rendered for plaintiff in the sum of $200 on his claim of $1,000. The verdict was set aside as inadequate. Thereafter plaintiff renewed Ms motion for summary judgment, wMeh was granted. Although the complaint and affidavits in support of the motion indicate that the action was brought to recover an agreed price as weE as the reasonable value of professional services rendered, it appears that the case had been tried upon the theory of reasonable value. Plaintiff’s position on the trial and the result thereof are sufficient to show that plaintiff is not entitled to a summary judgment for the fuE amount. At most he is entitled to the reasonable value of his services under an assessment of damages, as provided by rule 113 of the Rules of CivE Practice. Further, the court is of the opinion that inasmuch as the original motion for summary judgment was demed and the case was once tried, plaintiff, has waived Ms rights to a summary judgment, and there should be a retrial of the action. Lazansky, P. J., Hagarty, Seudder, Tompkins and Davis, JJ., concur.
