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La Cagnina v. Kelly

88 N.Y.S. 389 Court N.Y. App. Term Decision date 1904-05-19 English

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p. 389
LA CAGNINA v. KELLY.
(Supreme Court, Appellate Term.
May 19, 1904.)

Headnote

1. Work and Labor—Extra Work—Compensation.
Plaintiff is not entitled to an allowance for extra work in the absence of evidence as to its value.
Appeal from Municipal Court, Borough of Manhattan, Fourth District. °
Action by Orasio La Cagnina against John Kelly. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
B. E. Siegelstein, for appellant.
A. Caccia, for respondent.

There is no evidence that warranted the court in finding that the plaintiff was entitled to recover $8o for extra work. It is true that the plaintiff testified that he did certain extra work, but nowhere did he testify as to the value of that extra work. The judgment was for $155. The contract price for the work to be done by the plaintiff was $190. The plaintiff admits that he was paid $125. Taking plaintiff’s' testimony as true, and not giving the defendant any credit for moneys paid by him to Labrizzi,, the evidence shows that there was but $65 due plaintiff from the defendant.

Judgment is reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff consents to reduce the judgment to $75, in which event the judgment is affirmed, without costs oí this appeal.