Baumgarten v. Lafayette National Bank

253 A.D. 916, 2 N.Y.S.2d 561, 1938 N.Y. App. Div. LEXIS 9252

Opinion

Judgment entered upon order dismissing plaintiff’s complaint at the close of the plaintiff’s case in an action for services claimed to have been performed by the plaintiff for the defendant’s intestate reversed on the law, and a new trial granted, with costs, payable out of the estate, to the appellant to abide the event. In our opinion there were questions of fact that should have been submitted to the jury. (Kraus v. Birnbaum,, 200 N. Y. 130.) There was proof of an offer of employment and of performance of the duties prescribed in the offer. From this the jury might infer an acceptance of the offer. Under such circumstances, the law presumes a promise to pay the reasonable value by the person benefited. (Leahy v. Campbell, 70 App. Div. 127; McKeon v. Van Slyck, 223 N. Y. 392.) The entries in the books of account belonging to the defendant’s intestate, which were made by the plaintiff, are competent to show the nature of the services performed. However, such books were not sufficiently identified as being the account books of the defendant’s intestate, but such proof may be furnished upon another trial. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur. ' ,*j