Kotkin v. Landau — 123 N.Y.S. 958

Majority

p. 958

KOTKIN v. LANDAU et al.

(Supreme Court, Appellate Term.

June 24, 1910.)

Headnote

Appeal and Error (§ 1171^[1] )—Reversal—Error as to Amount oe Recovery.

A judgment will be reversed, and new trial ordered, on plaintiff’s appeal in an action for services rendered, in which plaintiff recovered $81, where defendant’s own case shows that plaintiff was entitled to at least $25 more than the verdict.

[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§ 4546-4554; Dec. Dig. § 1171.*]

p. 959

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

Action by Morris Kotkin against Bernard Landau and another. From a judgment for plaintiff for less than his claim, he appeals.

Reversed, and new trial ordered.

Argued before SEABURY, GUY, and BIJUR, JJ.

Sternberg, Jacobson & Pollock, for appellant.

Leo Schafrau, for respondents.

This action was brought to recover the sum of $380.86, alleged to be the balance due for services rendered and materials furnished by the plaintiff at the request of the defendants. The answer was a general denial and a counterclaim for $36.

It is undisputed that the services' were rendered and that the materials were furnished at the defendants’ request. There was, however, a sharp conflict presented by the "evidence as to the price at which the servicés were rendered and materials furnished. Assuming the respondents’ version of the transactions to be correct, the undisputed testimony shows that the appellant was entitled to receive at least $35 more than he was awarded by the lower court. The judgment must therefore be reversed, and a new trial ordered.

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