Burns v. Swan — 45 N.Y. St. Rep. 103

Majority

p. 103

Jabez Burns, Resp’t, v. William J. Swan, App’lt.

(New York Common Pleas, General Term,

Filed March 7, 1892.)

Headnote

Services—Appraisal op pire damages.

In an action for services in appraising damages by fire the only question was as to defendant’s liability to pay and whether the action was prematurely brought. There was evidence to show such liability by reason of an agreement between the owners of the property and defendant, and that defendant had received from them more than enough money to pay for the services and had admitted that he was to pay all disbursements. Held, that a judgment in favor of plaintiff would not be disturbed. •

Appeal from a judgment rendered in the district court of the city of New York for the first judicial district

Janeway, Thatcherr & .Richards, for app’lt; Johnston & Johnston, for resp’t.

This action was brought to recover for services in appraising damages by fire to the machinery of Loudon & Johnson. The evidence as to the rendition of the services sued for was practically admitted upon the trial, and the value of such services was not disputed; the only question being whether the defendant was bound to pay for the services rendered by the plaintiff, and if so whether the action was prematurely brought. After an examination of the evidence, we think the liability of the defendant to pay the plaintiff was clearly established and that the judgment of the court below was right in that particular. We also think that, under the agreement between the defendant and Loudon & Johnson, the action was not prematurely brought. The former had received from the latter $560.79, much more than sufficient to pay for these services; and the defendant admitted that he was to pay all disbursements made by them. Whether anything was due from Loudon & Johnson to the defendant at the time this action was brought was a matter in dispute between them. It was not for the court below, nor is it for this court, to determine whether anything was due or not. This judgment will not in any way prejudice the defendant in his contention with Loudon & Johnson.

The judgment should therefore be affirmed, with costs.

Bischoff, J., concurs.