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Worm v. McKinley Realty & Construction Co.

97 N.Y.S. 374 Court N.Y. App. Term Decision date 1906-01-17 English

Delivered by DOWLING, J.

Contents

Majority

p. 374
WORM et al. v. McKINLEY REALTY & CONSTRUCTION CO.
(Supreme Court, Appellate Term.
January 17, 1906.)

Headnote

Contracts—Action fob Services—Dismissal.
Dismissal of the complaint is error, though the testimony is insufficient as to most of the services alleged to have been rendered to defendant, there being evidence that defendant’s president requested plaintiffs to put certain work in defendant’s office, and that this was done, and the value thereof being shown and in no way disputed; this making a prima facie case.
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Jacob Worm and another against the McKinley Realty & Construction Company. From a judgment for defendant, plaintiffs appeal.
Reversed.
Argued before SCOTT, P. J., and BLANCHARD and DOW-LING, JJ.
Leopold Freiman, for appellants.
Morrison & .Schiff, for respondent.

At the close of the testimony, upon motion of the defendant, the complaint was dismissed by the court for failure of proof. The plaintiffs claimed to recover for work performed for the defendant, first, upon buildings situated at 143d street; second, work done at the office of the defendant; third, work done at 140th street and Lenox avenue; and, fourth, work done at 950 Sherman avenue. The plaintiffs claim that the contracts under which the work was performed were made by one Newmark, the president of the defendant. The testimony given by the plaintiffs is very meagre and unconvincing, except as to one item. As to that there is testimony that the plaintiffs were requested by the defendant’s president to put into their office a wardrobe, shelvés, a desk, and some brackets, which was. done, and the .value thereof was shown and was in no way disputed. This testimony was sufficient to warrant a judgment for the .plaintiffs, and for the services thus proven they had proved a prima facie cas.e, and consequently the dismissal of the complaint was error.

Judgment reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.