Moss v. Brisbane — 3 Trans. App. 7

Majority

p. 7

JARED W. MOSS, Administrator of EDWARD A. MOSS, deceased, Respondent, v. GEORGE BRISBANE, Appellant.

Headnote

Appeal from the Supreme Court. The action was for moneys expended and services rendered by the Plaintiff, under a written agreement with the Defendant, wrhich provided, among other things, that the Plaintiff should take charge of certain rooms in a hotel in Buffalo, kept by the Defendant, for the sum of $90 a month, and that the Plaintiff should provide certain articles necessary for the purpose, and pay for all gas consumed in the building.

The referee found, as matter of fact, that the parties entered into the agreement alleged; that the Plaintiff rendered the stipulated services; that he furnished certain necessary articles, which the Defendant undertook and neglected to provide; and that he advanced certain moneys for the benefit of the Defendant, and for which the latter was liable. The referee directed judgment for the amount due, which was $1,646.35, with costs.

The only exception taken by the Defendant was to the admission of proof of the amount paid by the Plaintiff for gas consumed in the hotel.

The judgment was affirmed at the General Term in the Eighth District, and the Defendant appealed to this Court.

Talcott, Houghton & Clark for Appellant.

Ganson & Smith for Bespondent.

The referee was right in receiving the proof to which the Defendant objected. The use of the gas was essential in conducting the business in which the parties were engaged. The Plaintiff was at liberty to make the payments and claim reimbursement from the Defendant. The appeal is without merit, and the judgment should be affirmed, with five per cent, damages for delay.

All concur.

Judgment accordingly.

JOEL TIFFANY,

State Reporter.