Aitken v. Daly — 64 N.Y.S. 8

Majority

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AITKEN v. DALY.

(Supreme Court, Appellate Term.

April 16, 1900.)

Headnote

Conflicting Evidence—Verdict—Appeal.

A verdict on conflicting evidence will not be disturbed on appeal.

Appeal from municipal court, borough of the Bronx.

Quantum meruit by William Aitken against Peter Daly for repairing and removing a house. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

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

Daniel Daly, for appellant.

John J. O’Brien, for respondent.

The action is to recover damages for breach of a contract entered into between the parties litigant, whereby the plaintiff agreed to perform certain labor and furnish materials in removing and repairing a house belonging to the defendant; the plaintiff claiming that complete performance of the contract on his part was prevented by the acts of the defendant, and that, therefore, he was entitled to recover upon a quantum meruit. The defense was that the plaintiff failed to perform the conditions of the agreement on his part, without any fault of the defendant, and that the former had so unreasonably delayed the completion of the work that the latter was compelled to finish it at his own expense. The questions of fact so raised by the pleadings and the proof were fairly subtiiitted to the jury, who resolved the conflict of testimony in the plaintiff’s

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favor, and we see no reason for disturbing their verdict. The solitary exception taken by the defendant at the trial to the admission of evidence is without merit.

The judgment must therefore be affirmed, with costs.