Phillips v. Citizens' Gas Light Co. — 51 N.Y. St. Rep. 553

Majority

p. 553

Alfred B. Phillips, Resp’t, v. The Citizens’ Gas Light Co. of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Services — Evidence—Appeal.

In an action for services as adjuster, evidence was given of a custom by

p. 554

which plaintiff would be entitled to fiveper cent upon the loss as adjusted, when the court refused to receive any more proof on the subject, and charged that the recovery, must be restricted to the “ reasonable value ’’ of the services. Held, that an objection that no proof was given of such “ reasonable value” could not be raised for the first time on appeal, as it might have been obviated if raised on the trial.

Appeal from judgment in favor of plaintiff, entered upon verdict.

Thomas S. Moore, for app’lt; Walter R. Beach, for resp’t.

The evidence established that the plaintiff was employed by and rendered service to the defendant in procuring the adjustment of a loss.

The only question as to which there can be any doubt is as to the amount of compensation to which plaintiff is entitled.

In respect to that question, defendant has no ground of complaint. After various witnesses had testified to a custom by which plaintiff would be entitled to five per cent upon the loss as adjusted, the court refused to hear further evidence on that subject, and charged the jury that the recovery must be restricted to the reasonable value of the services.

Defendant now claims that no proof was given of the “ reasonable value ” of the services, and that the verdict must be set aside for that reason.

Had that point been raised at the close of the testimony, it cannot be doubted that the omission to show in express terms the “ reasonable value ” would have been obviated.

It is plain that both court and counsel considered that proof of a custom to pay five per cent was evidence which the jury might consider upon the question of “reasonable value.” In this we find no error, and the verdict must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.