Rochelle v. Pell — 94 N.Y.S. 448

Majority

p. 448

ROCHELLE v. PELL.

(Supreme Court, Appellate Term.

June 22, 1905.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by George I. Rochelle against Louis Pell. From a judgment for plaintiff, defendant appeals.

Reversed on condition.

Argued before SCOTT, P. J., and MacLEAN and DUGRO, JJ.

Wasserman & Jacobus, for appellant.

Harry E. Herman, for respondent.

Plaintiff testified that he rendered a bill at first for $39, and never demanded more before bringing this action; that defendant refused to pay, and that he then added the real amount that he had worked for; that he had made a mistake when he rendered a bill for $39; that he rendered the bill only for services to defendant; that he.reckoned up, and found that he had treated his wife and sister-in-law; that he didn’t charge defendant with the $85.50, because he had made up his mind at that time to charge him merely a nominal fee. Later, asked why he changed his mind, he

p. 449

said because he had to sue. He further testified that defendant paid the last $25 on account of $117.50, and that the difference between $39 and $89.50 is what the services are reasonably worth, while the summons, bill of particulars, and judgment specify $85.50.

It seems, in view of the character of the plaintiff’s feelings toward the defendant evinced in the voluntary, irrelevant statement to be found on the last page of the stenographer’s minutes, plaintiff’s interest, contradictory evidence, and the probabilities, that the judgment should be reversed, and that there should be a new trial ordered, with costs to abide the ev'ent, unless he stipulates that the judgment be reduced to $53.31, in which event the judgment, modified accordingly, will be affirmed, without costs.