New York Novelty Co. v. Mela — 41 N.Y.S. 555

Majority

p. 555

NEW YORK NOVELTY CO. v. MELA.

(City Court of New York,

General Term.

October 30, 1896.)

Headnote

Evidence—Sufficiency.

Plaintiff claimed that defendant, his landlord, agreed to pay $100 towards alterations on the premises. Defendant testified that he only agreed to pay the cost of the labor in making the alterations on representations by plaintiff that he had the materials therefor, and that the labor would not cost over $30. Plaintiff paid $125 for the alterations, but did not furnish the material. Held, that the fact that defendant, before suit, offered to pay plaintiff $50, warranted a finding that he agreed to pay for the labor, and that the labor was worth $50.

Appeal from special term.

Action by the Hew York Hovelty Company against Ferd. H. Mela. Judgment was entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial defendant appeals. Affirmed.

Argued before YAH WYOK, C. J., and FITZSIMOHS, J.

p. 556

Charles Putzel, for appellant.

Edgar A. Lauer, for respondent.

The plaintiff contended by proof and pleading that defendant agreed to pay not exceeding $100 for certain alterations to be made in steam-pipe connections in defendant’s premises, which he had leased to plaintiff for a three-years term at $7,500 rent annually; while the defendant testified that, at the conversation he had with plaintiff’s agent about the steam-pipe connections to be made, this agent said that his company already had the pipes íb the premises from which they intended to move, and that the pipes • could be taken out and brought to defendant’s premises if defendant would pay for making the connections, and that in response he ■ (defendant) had thought it over, and considering that it probably would cost $25 or $30, and that as he did not care for a matter of' $20 or $30, he would stand it. The old pipe was not taken out and brought to defendant’s premises, but plaintiff caused the connections to be made with new pipe, and paid $125 for such pipe and' the labor for connecting same. The plaintiff’s agent testified that before action was brought the defendant had offered to pay $50, which was refused. The jury found for plaintiff for $50, evidently-concluding that defendant had agreed to pay for the labor, but not for the material, and that as defendant had offered to pay $50 the labor was worth that sum. The appellant’s contention is that, because the plaintiff’s witnesses had testified that it was entitled to $100 or nothing, the verdict should have been for plaintiff for that amount, or for the defendant. The jury, as it had the right, believed a part of plaintiff’s evidence and a part of defendant’s evidence, andb their verdict is not against evidence or weight of evidence.

Judgment and order affirmed, with costs.