Griffen v. Beatty

94 N.Y.S. 1147

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 23, 1905
• Status: Published

Opinion

SCOTT, P. J.

Allowing the most favorable aspect of the case to plaintiff, I do not see how this judgment can be sustained. The amount sued for is $23.09, which is the balance claimed to be due by the bill of particulars. In his bill of particulars the plaintiff claims upon a quantum meruit, ignoring any special contract. The defendant says that plaintiff agreed to set up the pump for $97. This seems to me to be corroborated in two ways: First, it is the exact difference between plaintiff’s original estimate of $157, which included a pump, and the amount ($60) paid by defendant for the pump which was put in. In the second place, the account (Exhibit 3) sent to defendant by plaintiff contains as its first item, “To millwright work and plumbing as per estimate, $97.” The learned justice below . apparently accepted this statement of account as the basis of the judgment which he rendered. I can see no room to doubt that plaintiff made an estimate of $97. Concededly he; has been paid $83. In his statement he charges for one wooden pulley additional and additional plumbing. The justice apparently allowed these items, and, indeed, must have done so in arriving at the sum for which judgment was rendered; but there was absolutely no proof to support either item. The judgment should be reduced to the sum of $14, with appropriate costs in the court below, and, as modified, affirmed, without costs in this court. All concur.