Israels v. Macdonald

123 A.D. 63, 107 N.Y.S. 826, 1907 N.Y. App. Div. LEXIS 3091

Opinion

Gaynor, J.:

The learned trial Judge did not err in excluding the evidence of experts as to what the "cost of such -a building would be. The actual cost could be proved, and therefore, the case was not one for the opinion, calculation or estimate of experts. No case is cited to the contrary. Nor was the statement of one of the plaintiffs before the plans and specifications were drawn, of the amount the building would or was to cost, evidence of the actual cost; it' was only an estimate or opinion. The same is true of the' statement. as to cost in the plans and specifications filed with the building department. There being no evidence of the actual cost, the case called for a non-suit. •

But the plaintiffs now claim that at all events they were entitled to recover some small items amounting to about $233, whereas the action is for $3,298.97. The claim is very obscure, to say the least.But- it suffices that it was not made below. On the contrary, in ' opposing the motion for a non-suit, counsel for the plaintiffs claimed the right to go to the jury on the evidence of the cost of the building only. If, apart from that, lie claimed that the evidence established a right to recover some other item, he should have pointed it out. -

' The judgment should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.