2 Wend. 577 | N.Y. Sup. Ct. | 1829
This was an action of assumpsit, brought by Quin against Astor. It appeared from the statement of the plaintiff’s counsel in opening his case, that Quin had contracted with Astor at some antecedent period to fill in and otherwise regulate certain lots belonging to him in the city of New-York; that Astor had paid the contract price, but that certain extra, labor had been performed by Quin in 1817, ’18, ’19, and that this action was brought to recover compensation for that extra, labor. A bill of particulars had been delivered by the plaintiff, in which all the plaintiff’s charges were stated under the date of April, 1821. The defendant’s counsel objected to proof of any services prior to 1821, and the court below sustained the objection; and the plaintiff being unable to prove a single item of service during the year 1821, the court nonsuited him.
In Humphrey v. Cottleyou, (4 Cowen, 54,) it is said that the date of the items should always be given with as much particularity as possible ; if the precise day cannot be stat
The calculation as to the extra, filling, &c. offered in evidence was properly rejected. It was proved to have been made by one Doughty, who also appeared to be alive and within the jurisdiction of the court. There was no evidence whatever of its correctness. The testimony of Corning amounted to nothing. He and Doughty were partners as surveyors, and Doughty generally made the calculations; but whether this calculation was made by Doughty, he could not say ; nor, if it was made by him, could he say that it was correct.
The decisions below were correct, and the plaintiff was properly nonsuited.
Judgment affirmed.