Estes v. Burns

5 Jones & S. 1

• Court: The Superior Court of New York City
• Decided: January 31, 1874
• Status: Published

Opinion

By the Court.—Freedman, J.

The two claims advanced by the plaintiff were submitted to the jury against the objection and exception of the defendant, who claimed that the plaintiff had failed in establishing any cause of action whatsoever. The jury disallowed the claim for loaned money, but for services a verdict for two hundred and twenty-five dollars and twenty-five cents was given. This verdict cannot be sustained. The evidence showed that the plaintiff was elected trustee of the same company on April 29, 1871, and consequently he could not, in any aspect of the case, recover from the defendant, as a co-trustee, as a penalty for the failure of the company to make and file the annual report required by statute, for services rendered subsequent to said date. This question was fairly raised by the answer, and although the printed case does not show that the attention of the trial judge was specifically directed to it, nothing appears which estops the defendant from insisting upon it. But a still more serious question arises from the fact, that, although one witness called for the plaintiff testified to plaintiff’s appointment as superintendent at a compensation to be paid at the rate of fifty dollars per month from March 20, 1871, to April 1, 1871, and at the rate of one hundred dollars per month thereafter, there was no evidence before the jury of the rendition of any services under said agreement or any sum due therefor, while defendant proved by two witnesses, whose testimony upon this point remained uncontradicted, that plaintiff had admitted to them that he had no claim against the company. The jury were even charged by the court that no evidence had been given in respect to any services rendered.

The judgment and order appealed from must be reversed, with costs to appellant to abide the event, and a new trial ordered.