Fuld v. Kahn — 4 Misc. 600

Majority

p. 600

NEW YORK COMMON PLEAS

GENERAL TERM,

AUGUST, 1893.

Fuld v. Kahn.

Headnote

Appeal from a judgment of a District Court in the city of New York, in favor of plaintiff.

Action to recover upon a special agreement for services alleged to have been rendered by plaintiff’s assignor at defendant’s request.

Leopold Moschcowitz, for plaintiff (respondent).

Leona/rd J. Lcmgbevn, for defendant (appellant).

Plaintiff sued to recover the sum of fifty dollars, the alleged agreed compensation of his assignor for services which the latter claimed to have performed at defendant’s request. Defendant denied the making of such agree

p. 601

ment, and the justice below gave judgment for plaintiff for ' twenty-five dollars.

It is obvious that the judgment is not consistent with the facts in evidence, and so should be reversed. Wise v. Rosenblatt, 30 N. Y. St. Repr. 858 ; 34 id. 1005 ; 16 Daly, 496 . The determination of the controversy rested in the conflicting contentions of the parties. Crediting the statements of plaintiff’s assignor, the recovery should have been for fifty dollars; discrediting them, defendant was entitled to judgment. The complaint was not amended to enable the action to proceed as one to recover the reasonable value of the services, nor was any evidence whatever introduced for either party from which the justice could determine such values. The recovery, therefore, was not secimdum allegata eb probata. Romeyn v. Sickles, 108 N. Y. 650 ; 1 Silvernail’s Ct. of App. 594.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. r

Gtegerich, J., concurs.

Judgment reversed and new trial ordered.

Cases cited

Romeyn v. Sickles 108 N. Y. 650 N.Y. 1888-02-28 p. 601