McCarthy v. Gallagher — 53 N.Y. St. Rep. 176

Majority

p. 176

Denis P. McCarthy, Resp’t, v. Patrick Gallagher, App’lt.^[1]

(New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

1. Appeal—Case.

A statement in a case on appeal that it contains all the testimony taken on the trial is not equivalent to a statement that it contains all the evidence taken on the trial, and the facts are not, under such a statement, brought before the court for review.

2. Contract—Satisfaction.

Where work is to be done to the satisfaction of a person, the satisfaction contemplated must be a reasonable one, and not a mere whim.

3. Mechanic’s lien—Evidence.

In an action to foreclose a mechanic’s lien, an expert witness testified that he went with plaintiff, after the lien was filed, to examine the character and quality of the work and materials, and that he made an effort to examine the inside of the premises. Held, that testimony as to the reason why he did not examine it was relevant and material, as showing the good faith of plaintiff and the motives actuating defendant in his defense.

4. Same.

Defendant testified that plaintiff delayed the work and, in consequence, he had lost rent. Held, that in the abseuce of proof that there were applicants for the house, or that in consequence of non-completion applicants had been refused or could not take possession, it was not error to reject a question as to how much he had lost.

Appeal from a judgment of the general term of the city court, affirming a judgment entered on the direction of a verdict at trial term.

H. A. Brann, for app’lt; Bdward W. S. Johnston, for resp’t.

This action was brought to foreclose a mechanic’s lien for a balance due under a building contract and for extra work, and resulted in a judgment in favor of the plaintiff, respondent. There is no statement in the appeal book that the case contains all the evidence taken on the trial, but, instead of

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that, there appears the following: “ The foregoing case on appeal contains all the testimony taken on the trial of this action.” It has been repeatedly decided of late that the latter of these statements is not the equivalent of the former, and that under such a statement the facts are not brought before the court, even at general term, for review. Hyman v. Friedman, 45 St. Rep., 636 ; Aldridge v. Aldridge, 120 N. Y., 614 ; 31 St. Rep., 948 ; Upington v. Pooler, 47 id., 34; Halpin v. P. Ins. Co., 118 N. Y., 166 ; 28 St. Rep., 788 ; Brayton v. Sherman, id., 854 ; Porter v. Smith, 107 N. Y., 531 ; 12 St. Rep., 479 ; Claflin v. Flack, 36 id., 728. And it is, therefore, unnecessary to go over this ground again. But it may be proper to remark that the case under consideration is an ample justification of the rule established, for it appears from the return that exhibits Nos. 1. 4, 8, 12 and 14 were introduced in evidence but are not printed in the appeal book. Notwithstanding this omission the court below did review all the ■questions of fact involved in the case and found there was “ ample evidence to sustain his (the court’s) findings,” among which was the finding that the plaintiff had duly performed for the defendant the work, and furnished the materials provided for in the contract, in all respects on his part. This disposes of the appellant’s contention that the plaintiff was bound to show performance on his part before he could recover in the action.- The contention that he was bound to do it to the satisfaction of the defendant cannot be sustained in view of the findings of facts in this case. Besides, it may be remarked, that the satisfaction contemplated by law must be a reasonable one, and not a mere whim, as it appears to have been in this case.

The only questions left for review, therefore, are those arising on the exceptions taken, and they are but two or three in number. A witness, an expert paper hanger, having testified he went in company with the plaintiff, after the filing of his lien, to the premises in question in order to examine the character and quality of the work done and the materials furnished pursuant to the contract, testified that he made an effort to examine the inside, and was then asked the question for what reason he did not examine it (the inside); this was objected to as irrelevant and immaterial; the objection was overruled and exception taken. This objection in no manner pointed out an error, if any, in the question. The testimony was, in our judgment, both relevant and material as, showing the good faith of the plaintiff and the motives actuating the defendant in his defense. But even if the question were irrelevant, it could by no possibility have injured the defendant, and as this was in effect an action in equity, the judgment would not be reversed merely because irrelevant matter was admitted.

The defendant had testified that he had frequently called the plaintiff’s attention to the fact that he was delaying the work, and in consequence of that claimed that he had lost rent. He was then asked the question “ How much ?” This was objected to on behalf of the plaintiff as incompetent, irrelevant and immaterial, and it to us that an answer to that would

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have been a mem conclusion of the witness, as no proper basis had been laid for it, and the defendant had not attempted to precede it or follow it up by laying the proper basis therefor. It is not in the nature of expert testimony, which would have been incompetent in our judgment. It had not been shown that there were any applicants for rooms in the house, or that by reason of their not being completed applicants had been refused or could not take possession, or that rent had been lost in consequence. This precise question was considered by the general term of the city court in the case of Conover v. Lennon, 46 St. Rep., 18 , which was affirmed by this court. ' See, also, Scribner v. Jacobs, 31 St. Rep., 795 -6.

No other exceptions were argued upon the appeal, and we think the judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.