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Bernstein & Bernstein v. Goodman

102 N.Y.S. 751 Court N.Y. App. Term Decision date 1907-02-11 English

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p. 751
BERNSTEIN & BERNSTEIN v. GOODMAN.
(Supreme Court, Appellate Term.
February 11, 1907.)

Headnote

Judsment—Evidence to Sustain.
In an action on a contract, according to plaintiffs’ evidence they were entitled to recover $150, while according to defendant’s evidence they should recover nothing. Held, that there was no authority under the evidence for a judgment for $75.
Appeal from Municipal Court', Borough of Manhattan, Thirteenth District.
Action by Bernstein & Bernstein against Abraham Goodman. Appeal by plaintiffs from a judgment in their favor for $75. Reversed and remanded.
Argued before GIEDERSLEEVE, MacLEAN, and AMEND, JJ.
Reich & Brand, for appellants.
S. C. Sugerman, for respondent.

The plaintiffs, as architects, contracted to and did furnish plans for four buildings to be erected by the defendant. For these plans the plaintiffs claimed that the defendant agreed to pay the sum of $150 each, or $600 in all. The defendant’s contention was that the agreed price was the sum of $125 for each of two of his plans and $100 for each of the other two plans, in all the sum of $450. It is admitted by the plaintiffs that they were paid the sum of $375 in cash, and they also admit that they were to grant the defendant an allowance of $75, leaving due them the sum of $150. The trial judge gave plain-' tiffs judgment for $75, evidently believing the defendant’s testimony as to the terms of the agreement, and basing his allowance of that sum upon the claim of the defendant that the plaintiffs agreed to deduct the sum of $75 from the amount of their bill. Under the situation as presented by the testimony, the plaintiffs were entitled to the entire amount of their claim, viz., $150, or the defendant was entitled to a judgment in his favor. There is no authority for the judgment as it now stands, and the plaintiffs are entitled upon their appeal to have a new trial.

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