Spooner v. Kornarens — 113 N.Y.S. 483

Majority

p. 483

SPOONER v. KORNARENS et al.

(Supreme Court, Appellate Term.

December 16, 1908.)

Headnote

Evidence (§ 571^[1] )—Expekts—Opinion—Conclusiveness.

The opinion of experts as to the value of extra work done by plaintiff and of the defects alleged by defendant was not conclusive, but merely advisory, and should be given such weight as the justice saw fit.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. § 571.*]

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Joseph Spooner against Gesine M. Kornarens and another. From a judgment for plaintiff, defendant Michael E. Cleary appeals.

Affirmed.

Argued before GIEGERICH, HENDRICK, and FORD, JJ.

Ernest C. Morse, for appellant.

Jacob Frank, for respondent.

There is involved in this case only a question of the weight of evidence. The trial justice evidently believed the plaintiff’s version of the contract, and in this we can find no reason to differ with him. The testimony of the defendant Cleary that the entire work was undertaken for $50 is highly improbable. He himself counterclaimed $92.50 for repairing defects alone. So far as the extra work is concerned, the trial justice fixed the reasonable value of the same at only $71, instead of $104, as claimed by the plaintiff. Such deduction is fully warranted by the evidence. Moreover, the opinion of the experts as to the value of such extra work done by the plaintiff and of the defects alleged by the defendant was merely advisory, and was to be given such weight as the justice saw fit, and was not conclusive. Guyon v. Brooklyn Heights R. R. Co., 49 Misc. Rep. 514 , 519, 97 N. Y. Supp. 1038 and citations.

We are satisfied that substantial justice was done by the judgment, and therefore affirm the same, with costs.

Judgment affirmed, with costs. All concur.