Capobianco v. Thilemann — 64 N.Y.S. 43

Majority

p. 43

CAPOBIANCO v. THILEMANN.

(Supreme Court, Appellate Term.

April 16, 1900.)

Headnote

1. Master and Servant—Work Done—Inspector’s Estimate—Conclusiveness.

Where plaintiff was employed by defendant, a city contractor, to do such work as he was instructed to do by the inspector on the work, he was not precluded from showing what work he did by the inspector’s estimate, which, by an agreement between the city and the contractor, was made conclusive of the amount of work done, since he was not a party thereto.

2. Appeal—Conflicting Evidence—Review.

Where a judgment was rendered on conflicting testimony, and exceptions were not properly taken, it will not be disturbed.

Appeal from municipal court, borough of the Bronx, Second district.

Action by Nicola Gapobianco against Frederick Thilemann. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before BEEKMAN, P. J., and GIEGERIGH and O’GORMAN, JJ.

O. W. Dayton, for appellant.

F. J. Kuerzi, for respondent.

The plaintiff sued for labor performed at the request of the defendant. According to his evidence, he was directed to do such work as he was instructed to perform by the inspector on the work. A dispute arising as to the extent of the services rendered, the evidence given on behalf of the plaintiff justified the conclusion reached by the court below. Lawrence v. Mayor, etc., 29 App. Div. 298 , 51 N. Y. Supp. 416 , has no application. That was a case between a contractor and the city, under a contract providing that the estimate of the engineer as to the amount of work performed would be conclusive between the parties. There was a similar contract between the defendant in this case and the city of New York. The plaintiff, however, was not a party to it, and was not bound by its provisions, in the absence of an express agreement on his part. The proofs in this case do not establish such an agreement. As to the defense of nonjoinder of necessary parties, there was not sufficient evidence to support it. The judgment was rendered on conflicting testimony, and, as there is no merit in the exceptions, it should not be disturbed.

Judgment affirmed, with costs.