Lawton v. Roseno — 125 A.D. 628

Majority

p. 628

George Marshall Lawton, Respondent, v. Louis Roseno and Others, Appellants.

Second Department,

April 24, 1908.

Headnote

Evidence — cost of work — expert testimony excluded.

In an action by an architect for preparing plans, for which he was to receive a percentage of the cost of the work, he may not prove the reasonable cost by experts, but must prove the actual cost.

Appeal by the defendants, Louis Eoseno and others, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury.

Theodore Prince [Henry S. Dottenheim with him on the brief], for the appellants.

Warren McConihe, for the respondent.

This is an action by an architect for services in preparing the plans and specifications for the alteration of a building. The agreement was that he was to be paid four per cent, of the cost of the alteration. The contractor who did the work and furnished the material has a suit pending against the owner for the cost thereof. This plaintiff did not await the determination thereof, and had to prove such cost on the trial. He called experts to testify from examining the finished work what its reasonable cost was. The exception to the admission of this evidence is good. The actual cost could and should have been proved, and not any estimated cost (Israels v. Macdonald, 123 App. Div. 63 ).

The judgment should be reversed.

■Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.