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Newcombe v. Hyman

73 N.Y. St. Rep. 243 Court N.Y. App. Term Decision date 1896-02-26 English

Delivered by McADAM, J.

Contents

Majority

p. 243
Ida M. Newcombe, as Executrix, etc., Resp’t, v. Samuel P. Hyman, App’lt.
(Supreme Court, Appellate Term, First Department,
Filed Feb. 26, 1896.)

Headnote

1. Appeal—Harmless error.
Where, in an action for professional services, the books of the firm are received in evidence under objection and exception, and merely show the rendition of the services, 'which were practically conceded by the defendant, their admission, even though erroneous under the preliminary proofs offered, did him no injury, and the exception to their admission is of no importance.
2. Evidence—Valid.
The mere rendition of a billfor services does not conclude either party on the question of value.
3. Same—Admissions.
An offer by defendant in settlement of a bill for services and an agreement upon a certain amount, are available to the plaintiff as an admission against interest made by the defendant, though the action is on a quantum meruit, and not to recover the agreed compensation.
4 Witness—Credibility—Partner.
A partner of the defendant is not a disinterested witness so as to require the jury to believe his testimony, though uncontradicted and in no way discredited.
5. Same—Party.
The testimony of a party, though uncontradicted, is not conclusive. So held as to the testimony of defendant, though uncontradicted, as to payment, where, on the trial, neither the absence of a receipt for such payment nor the check on which the money to make the payment was claimed to have ■' been procured, was satisfactorily accounted for, and defendant admitted that the date of the payment as sworn to in his answer was false.
Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff entered on a verdict
Epstein Bros, for app’lt; Booraem, Hamilton, Beckett & Hansom, for resp’t

The action was to recover $500 for professional services rendered to the defendant by the late law firm. of Donohue, Newcombe & Cardozo. Bv reason of the death of Mr. Newcombe, the firm dissolved July 26, 1891; and, in settling the affairs of the partnership, the claim in suit was transferred to the widow of Mr. Newcombe as his executrix, and in that capacity she sues to recover the sum claimed.

The bill representing the claim is in these words:

p. 244
“15 April, 1889-

“S. P. Hyman, Esq., to Donohue, Newcombe & Cardoza, Dr. “1888. August, September and October.

“To professional services in the matter of your' accounting as assignee of J. S. Cohen & Co.; attendances on references and motions; your arrest; proceedings in district attorney’s office and before grand jury; negotiations for settlement; taking releases; assignments; and final adjustment........................$500.”

No items other than those which appear in the bill were furnished, nor do the books of the firm give much more information. The books of the firm were received in evidence under objection and exception. They merely showed, the rendition of the services,' and, as that was practically conceded by the defendant, their admission, even if erroneous under the preliminary proofs .offered, did him nO injury, and the exception to their admission is of no importance.

The only serious objection in the case is that taken to the absence of proof of reasonable value. The charge made in the books was merely theestimate of value which Mr. Newcombe placed upon his services, to the accuracy of which the defendant does not seem to have in any manner assented. The mere rendition of the bill did not conclude either party on the question of value. Williams v. Gleny, 16 N. Y. 389 .

The defendant claims that, though he never formally objected to the bill, he never assented to the. amount of the charge. He testified (without objection) that he called upon Mr. Newcombe, and offered him $250 in settlement of the bill, and that they finally agreed .on $300. This is the only evidence establishing value in the case. It is available to the plaintiff as an admission against interest made by the defendant (Cook v. Barr, 44 N. Y. 156 ); and this though the action is on 'a quantum meruit, and not to recover the agreed compensation (Fells v. Vestvali, * 41 N. Y. 152 ; Goetz v. Van Au, 12 Civ. Proc. R. 104, and note; American Encaustic Tiling Co. v. Reich 34 St. Rep. 64 ).

The defense was payment. In the answer the defendant swore that the payment was made on or about April 15,1889, and on the trial testified that the time was February, 18.91, and that what he had sworn to in the answer was false. There were other statements in his story which made it .improbable; and, being interested in the result, the jury were under no obligation to believe his testimony. Mr. Maas, who undertook to corroborate the statement as to payment, was a partner of the defendant, and not disinterested to such extent as to require the jury to believe the evidence he gave. Kavanaugh v. Wilson, 70 N. Y. 177 , and kindred cases. It is only where a witness is disinterested and in no way discredited testifies to a fact within his knowledge, which is not of itself impropable or-in conflict with other evidence, thatt his testimony must be believed. Arms v. Arms, 13 St. Rep. 196 ; Lomer v. Meeker, 25 N. Y. 361 ; Elwood v. Telegraph Co., 45 N. Y. 549 ; Kelly v. Burroughs, 102 N. Y. 93 . Considering the fact that neither the check upon which the money to pay

p. 245
the bill is said to have been procured, nor the receipt claimed to have been given by Mr. PTeweombe when the alleged payment was made, was produced or its absence satisfactorily accounted for, the value of the testimony adduced by defendant was seriously impaired. It was certainly not of that demonstrative or impressive character likely to carry conviction to the minds of jurors, or which they are bound as of course to credit and adopt. The lips of the party to whom the alleged payment was made were sealed in death, and the defendant was allowed every conceivable latitude to make out his defense, even to the extent of giving his own version of the transaction alleged to have been had with the testator in his lifetime. The case essentially one for a jury to determine, in the light of all the surrounding circumstances, giving proper weight to the interest of the parties .testifying and the inherent probability or improbability of their stories. It was not one where the court could have directed a verdict. The jury had to reach a result from the evidence; they found against the defendant; and the trial judge and the general term of the court below have approved of the finding. We will assume, therefore, that the agreed $300 was not paid.

The difficulty with the verdict, however, is that the jury found in favor of the plaintiff for the entire amount of the bill ($500, with interest), instead of the value of the services as legally established. To correct this error, the judgment appealed from will have to be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless within ten days the plaintiff stipulates to reduce the damages recovered in the court below to $300, with interest, in which event the judgment, as modified, will be affirmed, without costs upon this appeal.

Allconeur.

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