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Trubenbach v. Otten

122 N.Y.S. 616 Court N.Y. App. Div. Decision date 1910-04-22 English

Delivered by THOMAS, J.

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p. 616
TRUBENBACH v. OTTEN.
(Supreme Court, Appellate Division, Second Department.
April 22, 1910.)

Headnote

Wobk and Labor (§ 24[1] )—Actions—Burden of Proof.
Where plaintiff, in an action to recover for services rendered under a contract, relies for recovery upon quantum meruit, he should show the value of the services.
[Ed. Note.—Por other cases, see Work and Labor, Cent. Dig. §§ 43-46; Dec. Dig. § 24.[1] ]
Appeal from Nassau County Court.
Action by H. L. Trubenbach against John W. Otten. From a judgment of the County Court, affirming a judgment of a Justice Court for plaintiff, defendant appeals.
Reversed.
Argued before JENKS, BURR, THOMAS, RICH, and CARR, JJ.
Clock & Seaman, for appellant.
Maxson & Jones, for respondent.

It is considered that the merits favor the plaintiff; but the record does not present evidence whereon the damages can be ascertained. The plaintiff did not show the value of his services, as he should if he relies for recovery upon quantum meruit. He should have been allowed to show the cost of the building, whereon, at the agreed percentage, such value could have been ascertained. It is preferable, if practicable, to prove the actual cost of the building; otherwise, the estimated cost may be shown. If an estimate of the cost was given by the defendant to the plaintiff, it is admissible. If there was any agreement for a specific sum for doing any part of the work, that may be shown. The record should contain an account of the indebtedness and the credits thereon.

■ The judgment and order of the County Court of Nassau county should be reversed, and a new trial in the Justice’s Court ordered; costs to abide the event. All concur.