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Phillips v. Citizens' Gaslight Co.

21 N.Y.S. 1109 Court N.Y. Gen. Term Decision date 1893-02-13 English

Delivered by PRATT, J.

Contents

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p. 1109
PHILLIPS v. CITIZENS’ GASLIGHT CO.
(Supreme Court, General Term, Second Department.
February 13, 1893.)

Headnote

Appeal—Objection not Raised Below. In an action to recover for services rendered, plaintiff gave evidence of a custom to pay a certain sum for such services, but there was no other evidence as to the amount which plaintiff was entitled to recover. The court charged that the recovery must be restricted to the “reasonable value” of the services. Held, that an objection that there was no evidence of such “reasonable value ” would not be considered, when raised for the first time on appeal.
Appeal from circuit court, Kings count)1-.
Action by Alfred B. Phillips against the Citizens’ Gaslight Company of Brooklyn to recover for services rendered defendant in procuring the adjustment of a loss caused by fire. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
Argued before BARNARD, P. J, and PRATT, J.
Moore & Wallace, (Thomas S. Moore, of counsel,) for appellant.
Walter R. Beach, for respondent.

The evidence established that the plaintiff was employed by," and rendered service to, the defendant, in procuring the adjustment of a loss. The only question as to which there can be any

p. 1110
doubt is as to the amount of compensation to which plaintiff is entitled. In respect to that question defendant has no ground of complaint. After various witnesses had testified too custom by which plaintiff would be entitled to 5 -per cent, upon the loss, as adjusted, the court refused to hear further evidence on that subject, and charged the jury that the recovery must be restricted to the reasonable value of the services. Defendant now claims that no proof was given of the “reasonable value” of the services, and that the verdict must' be set aside for that reason. Had that point been raised at the close of the testimony, it cannot be doubted that the omission to show, in express terms, the “reasonable value,” would have been obviated. It is plain that both court and counsel considered that proof of a custom to pay 5 per cent, was evidence which the jury might consider upon the question of “reasonable value.” In this "we find no error, and the verdict must be affirmed, with costs.