De Lawrence v. Bacigalupo

113 N.Y.S. 1130

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinion

SEABURY, J.

The plaintiff sued to recover $110 under a contract made November 1, 1907, of which the following is a copy: “Agreement, made this 1st day of November, 1907, between Joseph De Lawrence, horseshoer, of the city and county of New York, party of the first part, and Charles Bacigalupo, of Spring street, city of New York, party of the second part, as follows: The parts' of the first part hereby agrees to shoe all the horses owned at any time by the party of the second part for the sum of one hundred and ten dollars per • month ($110), each horse to have rubber under the front feet during snow and ice time in winter months. In summer any horse having sore feet to be padded and made comfortable. The term of the agreement to be for one year, from November 1, 1907, to November 1. 1908. And the party of the second part agrees to pay to the party of the first part the sum of one hundred and ten dollars ($110), as per agreement heretofore stated, on the 1st day of each and every month during the term of this agreement. In witness whereof, we have set our hands and seals the day and year above mentioned. Charles Bacigalupo. Joseph De Lawrence.” The plaintiff performed work under the contract and was paid as therein provided up to February 1, 1908. After that date the plaintiff shod one of the horses of the defendant, and the defendant refused to allow him to do any other work under the contract, upon the ground that the work which he had done had been so defectively performed that injury resulted to the defendant’s horses. The defendant pleaded a counterclaim for the damage which he claimed he sustained by reason of the alleged defective manner in which the plaintiff had done the work. The making of the contract being admitted, the plaintiff proved the work which he had done under it and the refusal of the defendant to permit him to do other work. The evidence, which the defendant offered, to prove that his horses had been injured by reason of the negligent manner in which the plaintiff had shod them, was altogether insufficient to establish the contention made. The evidence, which the defendant offered on this subject, was general and unsatisfactory, and failed to show that the injuries from which he claimed his horses suffered were the result of the plaintiff’s negligence. Upon the evidence presented, the plaintiff was entitled to recover judgment. The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.