Knallakan v. Beck — 13 N.Y. St. Rep. 235

Majority

p. 235

Clemens Knallakan, Resp’t, v. Jacob J. Beck, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed January, 1888.)

Headnote

1. Appeal—What objections may be considered upon.

Upon appeal a party must be confined in his objections to the admission of evidence by the trial court to those which were stated and taken when the rulings complained of were made.

8. Pleadings—In justice’s court—Must be liberally construed.

Pleadings framed in a justice’s court must be liberally construed.

8. Contract oe service—Evidence oe rate oe compensation—What is competent.

Where, in an action to recover compensation for services rendered under an express contract, there is conflict between the parties as to the rate of compensation agreed upon: Held, that it was competent to show the usual rate of compensation as bearing upon the probable truth of the allegation of the rate agreed upon.

Appeal from a judgment entered in Oneida county upon a verdict for $102.04, taken in the county court of that county.

Action by plaintiff to recover wages of defendant Horn May, 1883, to March, 1886, “as carriage and sleigh maker and as general workman, under a specific agreement for such labor and services with defendant, by the terms of which agreement defendant promised and agreed to, with plaintiff, to pay plaintiff four dollars per week, besides his board and washing.”

Defendant’s answer contained a general denial, set up payment and a counter-claim.

Plaintiff recovered fifty-two dollars as a verdict in a jus

p. 236

tice’s court. Defendant appealed and a new trial was had in the county court.

Nock, Briggs and O. P. Backus, for app’lt; D. E. Powers> for resp’t.

Plaintiff put in evidence and rested. Defendant put in evidence and rested. That evidence on either side related to what the agreement was between the parties. Plaintiff maintained it was four dollars per week and board, and defendant claimed two dollars per week and board. Thereupon plaintiff called as a witness one Nolan, who was a laborer and worked at defendant’s shop when plaintiff was there, and. who testified that he “knew what the services of a wood workman engaged in that trade were worth. He was then asked: “In Taberg, May 26, 1883, what was the fair market value for the services of a man who had learned his trade and worked at wagon making there in that shop?” This was objected to “as improper and immaterial, and no foundation laid for the evidence; and this is an action brought upon a specific contract, and that evidence of this character is decidedly inadmissible under the pléadings.”

The court overruled the objection and stated, viz: “I allow the evidence, not to fix or govern the price, nor for the purpose of establishing the price, only as a circumstance going to the probability of what the contract was between the parties.” Defendant excepted. Later on, the court held that the witness “ cannot give what the services of either himself or the plaintiff were worth,” upon the motion of defendant, and then allowed the witness to state what the services of a mechanic were worth to do “that sort of work,” which the evidence showed the plaintiff had been engaged in, and the defendant again objected and excepted. Defendant took no objection that the evidence had been closed, and the plaintiff was re-opening the case.

He cannot now be heard to say that the court abused its discretion in that regard; he must be confined to the objections stated, and stated when the rulings complained of were made.

In Marshall v. Davies ( 78 N. Y., 419 ), referred to by appellant, the objection was taken “that the witness had, already testified,” and the court sustained that objection, and it was held that no error was committed.

If the defendant had taken a similar or the equivalent objection non constat, the court would have sustained it. It is now too late for the first time to raise such an objection.

Was the evidence admissible? If the complaint had averred “that the services were worth the agreed price,” Corn

p. 237

ish v. Graff ( 36 Hun, 164 ), would be exactly in point. The complaint was framed in a justice’s court, and must be liberally construed. It does aver that “said balance of $106 is justly due and owing plaintiff from defendant.” That allegation could not be true, unless the agreement was as plaintiff claimed it to be.

The trial judge in his ruling, as well as in his charge, received and dealt with the evidence of the value of plaintiff’s services, as bearing upon the probability of the truth of the plaintiff’s position, that the agreement was for four dollars. per week, and not as defendant stated it, at two dollars per week.

For such purposes Cornish v. Graff (supra), seems to be an authority, and Sturgis v. Hendricks ( 51 N. Y., 635 ), seems to be in point.

When there is such a conflict of the parties as their evidence presented, it is said by Abbott’s Trial -Evidence, page 368, the usual price is competent as bearing upon the probable truth of the of rate agreed.

Trimble v. Stillwell (4 E. D., Smith, 512), cited by the appellant does not aid him, as in that case the special contract was admitted by the pleadings, and the court therefore held, the parties were confined to the contract-price, and could not resort to evidence of the value of the labor.

These views lead us to sustain the verdict and judgment.

Judgment affirmed with costs.

Follett and Martin, JJ., concur.