104 N.Y.S. 871 | N.Y. App. Term. | 1907
There is nothing in the testimony presented for review on this appeal to show that it is different from that given on the first trial, when judgment was given for plaintiffs. In reversing that judgment, MacLean, J., said (96 N. Y. Supp. 188):
“One of the plaintiffs testified that, with the exception of some stone requested to be left, they had made the excavation and removed all the material ; but the contrary was proven by such a preponderance of evidence, showing that they had done neither and that the defendant had removed many loads of material, that it was apparent, at the close of the testimony, that judgment must go for the defendant.”
Nothing appearing to the contrary, that view must be held binding here. The question of whether the contract had been completed was one of fact, and the justice in determining it does not seem to have abused discretion. The defendant was not precluded from giving testimony as to the cost of removing the material, which the plaintiffs should have done, because a counterclaim had not been interposed. The issue was whether the contract had been performed, and it was competent and relevant to show that work which the plaintiffs should llave done had to be done by others and that it cost the defendant accordingly. No error was committed here.
.There is no concession by the defendant that $17.50 was due plaintiff for extra work. There is a statement by plaintiffs’ attorney that “it is conceded on the part of the defendant,” etc.; but nothing appears to have been said by defendant. A mere statement by one attorney
Judgment affirmed, with costs to respondent.
