Lobhardt v. Gilbert — 25 N.Y. St. Rep. 504

Majority

p. 504

Conrad Lobhardt, Resp’t, v. Annie Gilbert, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Contract—Action for work, labor and services—When verdict not DISTURBED.

In an action on a written contract to recover for painters’ work and other services, it appeared that plaintiff performed part of the work, and excused his .failure to complete the labor under the agreement, and that he did other work not included in the agreement. Held, that the jury having found a verdict, on sufficient evidence, for plaintiff, it should not be disturbed.

Appeal from a judgment of the Kings county court affirming a judgment recovered in a justice’s court.

William J. Gaynor, for app’lt; Edward Grosse, for resp’t.

This action was commenced in a court of a justice of the peace for the recovery of a bill for painters’1 work and other services. A recovery was had against the defendant, from which she appealed to the county court of Kings county, where there was a new trial before a jury, and a verdict for the plaintiff for eighty dollars.

The defendant has appealed from the judgment entered upon the last verdict to this court, but we are unable to afford her relief. The testimony on the part of the plaintiff is abundantly sufficient to sustain the verdict and judgment if it commanded the belief of the jury as we must now assume it did.

In the first instance there was a written contract between the parties .under which the- plaintiff performed some work. He excuses his failure to complete the labor under the agreement, and then shows that he did other work not included in the contract. The defendant, in her testimony, denied many of the statements of the plaintiff, but all the evidence went to the jury, and the verdict is the result.

No questions of law are involved, and the verdict has settled the facts in favor of the plaintiff.

The judgment should be affirmed, with costs.

All concur.