Hyperlawhypertext legal database Model Examining & Sponging Co. v. Mark 157 N.Y.S. 763

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Model Examining & Sponging Co. v. Mark

157 N.Y.S. 763 Court Argued February term, 1916, before LEHMAN, WEEKS, and DEFEHANTY, JJ. Decision date 1916-03-13 English

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p. 763
MODEL EXAMINING & SPONGING CO. v. MARK et al.
(Supreme Court, Appellate Term, First Department.
March 13, 1916.)

Headnote

1. Work and Labor @=28(4)—Sufficiency of Evidence—Amount of Recovery.
Evidence In an action ior work, labor, and services hold to show plaintiff entitled to recover the sum of $35.30 upon its claim lor $71.33.
[Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 55; Dec. Dig. @=28(4).]
2. Evidence @=600—Sufficiency—Counterclaim.
A counterclaim must be sustained by strong and convincing proof.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2453-2459; Dec. Dig. @=600.]
«gsaFor other eases see same topic & KDY-NUMDEB in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by the Model Examining & Sponging Company against Nathan Mark and Israel Mark, copartners doing business under the firm name and style of the Acme Clothing Company. From a judgment rendered in favor of plaintiff, after a trial before the court without a jury, defendants appeal. Reversed, and new trial granted, unless plaintiff stipulates for a reduction of judgment, in which case, judgment modified and affirmed.
Argued February term, 1916, before LEHMAN, WEEKS, and DEFEHANTY, JJ.
Herman S. Fried, of New York City, for appellants.
Jacob Klein, of New York City, for respondent.

[1] The action is for work, labor, and services, and the only witness called by plaintiff testified that he was unable to say whether there was an agreed price fixed for the work in question, but gave the. reasonable value thereof. The doing of the work having been conceded, the defendants proved that the agreed price was fixed by the plaintiff’s Mr. Siegel, and all bills prior to the one sued upon had been adjusted upon that basis. This testimony was corroborated by the bills for such former work and the checks in payment of same, and fully sustained the defense of agreed price. On that issue the plaintiff was entitled to recover the sum of $35.30, instead of $71.33 claimed, and that we think should have been the judgment of the court upon the whole issue.

[2] As to the counterclaim pleaded, it was not, in our opinion, sustained by that strong and convincing kind of proof required. It was simply tiie story of one of the defendants as against that of plaintiff’s manager, and it was fairly resolved by the learned court in favor of plaintiff.

Judgment reversed, and new trial granted, with $30 costs to appellants to abide the event, unless respondent stipulates to reduce the judgment to $35.30, with appropriate costs in the court below, in which event the judgment, as modified, is affirmed, without costs to either party.