Bodine v. Andrews

47 A.D. 495, 62 N.Y.S. 385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1900
• Status: Published

Opinions

Hatch, J.:

This action was brought to recover for architect’s fees and the superintending of a building for the defendant. The rendition of the service and the amount of the plaintiff’s claim were-admitted by the defendant. The latter, however, set up by way of defense two items of indebtedness existing in favor of one Margaret E. Weber against the plaintiff, and which, prior to the commencement of the, action, had been assigned to the defendant. This being the state of the pleadings, the court properly ruled that the defendant held the affirmative of the issue.

‘Hpon the trial evidence was given tending to establish that the plaintiff had entered into a contract with Mrs. Weber, in which he agreed to build a house for her at a price not exceeding $5,500, and that in fact the house had cost in excess thereof $185, which she claimed constituted an indebtedness in her favor of such amount. It is quite evident that the figures furnished by the architect to Mrs. Weber did not constitute a contract. There is not a syllable contained therein tending to show a contract; on the contrary, it in terms states the price as estimated, to which five per cent is added, and was indorsed upon the plans. It was not signed by either party, and no consideration could make it a contract. When offered in evidence objection was made to its reception upon the 2>roper ground, but no exception was taken to the ruling of the court admitting it; and plaintiff was subsequently permitted, without objection,, to testify to the terms of an oral agreement to erect the house, of which this memorandum formed. a part. It is possible that a legal claim as to this counterclaim may be spelled out of the testimony, but such result upon this evidence ought only to be reached with much misgiving. The further counterclaim related to a claimed agreement on the part of the plaintiff with Mrs. Weber to hold her harmless from all damage, costs and expenses which she might incur by reason of the location of the house upon the lot. It •appeared from the testimony that there was a prohibition restraining Mrs. Weber from locating her house upon the premises nearer than fifteen feet to the street. The plans as prepared located the building upon the fifteen-foot line, but a bay window extended over. •Subsequently an action was brought against Mrs. Weber to enjoin such construction and compel a removal of the bay window. That action was tried and the complaint dismissed, and Mrs. Weber incurred a bill of $250 for legal services, which she paid, and the •claim assigned to the defendant is for such sum.

Mrs. Weber testified upon the trial that she examined the plans prior to the construction ; that she knew where the fifteen-foot line was; that she knew the building stood upon the fifteen-foot line and that the bay window extended' beyond ; and thus with full knowledge of the entire subject she approved of the plans and of the construction as proposed. It is clearly evident, therefore, that she would have no legal claim against the plaintiff upon any agreement ■of his to indemnify her for an act of which she was fully informed. Even though the promise was made by the plaintiff to pay the •expenses of her counsel after the suit was instituted, it would create no legal liability against him, as there was no consideration upon which it could be founded. Consequently there was no legal testimony in the case which authorized the jury to take into consideration this item of the counterclaim.

When the map was offered in evidence to show the location of the house, objection was made upon the ground that it was incompetent, immaterial and irrelevant; the objection was overruled and •exception was taken. Subsequently. Mrs. Weber .was asked to tell about any complaint which was made of encroachment upon the restricted space. This was objected to as immaterial, the objection was overruled and no exception to such ruling was taken. The ruling to which exception was taken can hardly be regarded as reversible error, for the reason that the map was admissible in evidence as showing the location of the house, and might have been used for that purpose entirely independent of any claimed liability arising on account of the claimed agreement to indemnify. The .second question was clearly error, as a complaint of encroachment was entirely immaterial to any valid issue which the case presented. The court, in submitting this question to the jury, stated: “You are to determine first, whether there was any fault on the part of the architect; and, secondly, whether by reason of such fault he-assumed the legal obligations to pay the lawyer.” The court thus-left to the jury what it should have determined for itself, to wity that there was no legal obligation established by the evidence-charging the defendant with such sum. It is true that there was no-exception to this part of the charge; but inasmuch as there was-nothing in the testimony from which the jury were authorized to-find any liability in this respect, the jury ought not to have been permitted to base a finding thereon. It is not only without evidence to sustain it, but from all the evidence it is clear that no legal liability existed.

While there is not in this case any exception which presents legal, error, yet a motion' for a new trial was made after the verdict was-rendered. Such motion is addressed to the sound discretion of the-court, and it is not. absolutely essential that a legal exception shall be taken in order to authorize the court to grant relief, the question, to be determined being, has substantial justice been done. (Rost v. Brooklyn Heights R. R. Co., 10. App. Div. 477.) In the present, case it seems clear that there exists no basis which created a legal liability against the plaintiff in the matters set up by way of conn-' terclaim; and this is so clearly apparent that we think justice requires-the granting of a new trial, for, with these demands eliminated, it is admitted that the plaintiff has an unsatisfied demand against the-defendant.

The judgment should be reversed and a new trial granted.

All concurred, except Goodrich, P. J., who read for affirmance,, with whom Hirschberg, J„ concurred.