Hogan v. Rosenthal

111 N.Y.S. 676 | N.Y. App. Div. | 1908

Woodward, J.:

The plaintiff brings this action to recover the sum of $324.31 for work, labor and services alleged to have been performed by him at the request of the defendant, the complaint alleging that this was the fair and reasonable value of such services, and that the defendant promised and agreed to pay. The defendant admitted that the plaintiff had performed the work, but alleged that the same was performed under an agreement that it should not cost to exceed $150, which the defendant was willing to pay. The evidence is sufficient to sustain the verdict of the jury upon a distinct conflict between the parties, and the principal question urged upon this appeal is whether the verdict for $300, instead of $324.31 demanded by the plaintiff, should be permitted to stand as against the appeal of the defendant. It is urged that the verdict was the result of a compromise and that the defendant is aggrieved by the fact that the verdict is not for the full amount claimed. We are of the opinion that there is no merit in this contention. The complaint, it is true, alleges that the services were performed; that they were of the fair and reasonable value of $324.31 and that the defendant had promised and agreed to pay, but this was not a liquidated claim ; it did not pretend to be. The separate defense pleaded was that the defendant agreed to pay not more than $150, and the issue was whether this was the contract or whether the plaintiff performed the services and was entitled to the fair and reasonable value of such services, and while it may be that the plaintiff' might have • complained at the verdict we are of the opinion that' the defendant is not aggrieved by the fact that'the jury cut down the claim $24.31. It does not show such a compromise as to discredit the action of the' jury. . The rule, we believe, is that the defendant cannot complain, because the plaintiff did not recover against him as large a verdict as he'was entitled to, unless the amount óf the verdict shows that'.the jury in determining the case either wholly disregarded the evidence or misapprehended its effect, or overlooked some important fact, or must, have.necessarily found some fact in favor of the defendant which is wholly inconsistent, with a verdict for any amount in favor of the plaintiff.- (Powers v. Gouraud, 19 Misc. Rep. 268, 271, and authority there cited.) Here it Cannot be presumed that' the jury were influenced in their action by any. consideration- of the small amount which they cut off from the plaintiff’s claim. They certainly did not reduce it because of the claim of the defendant that the work was to be done for $150; they distinctly refused to credit this special defense, and the fact that for some reason they did not give the plaintiff the full amount of his unliquidated claim is not a subject for complaint. on the part of the defendant.- In the cáse of Myers v. Myers (86 App. Div. 73) it was held that where there was a controversy over the question of whether the plaintiff was‘ entitled to $40 per month, in which event the defendant would be owing him substantially $900, or to $25 per month, which, under the defendant’s theory, would leave nothing due to the plaintiff, and the jury returned a verdict of $500, the defendant was aggrieved and had a right to have the verdict set aside. But there the evidence afforded no basis for the verdict. Either there was nothing due or there was $900, and a verdict for $500 could not -have been arrived at Under any consideration of the evidence. In the case at bar the jury may have thought that the fair value óf the work performed was less than the plaintiff claimed, and in that -event they were not bound to accept his estimate of the value. The defendant cannot be aggrieved by the jury refusing to place the same value Upon the plaintiff’s services that he does, and the -real issue having been determined in favor of the plaintiff upon a conflict-of evidence, there is nothing to do but to affirm the judgment, in the absence of legal error.

Wé think there is no reversible error in the court permitting the plaintiff to testify that he is a licensed master plumber: This answer was given in response to the question, “ What is your business ? ” There was no objection to the question. After the answer was given counsel objected to the answer and the question as not the best evidence. This was overruled and defendant excepted. We fail to discover any error in this ruling. It can hardly be improper for a man to testify that he is transacting a lawful business ; that he is following a lawful occupation in the manner pointed out and required tiy the statute law of the State. This would be the presumption until the contrary appears.

The judgment appealed from should be affirmed, with costs.

Hooker, G-aynor, Rich and Hiller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.