Kenyon v. Caine

Appellate Division of the Supreme Court of New York

Kenyon v. Caine

256 A.D. 900, 9 N.Y.S.2d 613

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 3, 1939

StatusPublished

This text of 256 A.D. 900 (Kenyon v. Caine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenyon v. Caine, 256 A.D. 900, 9 N.Y.S.2d 613 (N.Y. Ct. App. 1939).

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Opinion

Per Curiam.

The finding that plaintiff failed to establish the express contract sued upon was fully justified. The first cause of action predicated thereon sought a recovery of $3,500. The second, in quantum meruit, as amplified by the bill of particulars, alleged the reasonable value of the services to have been $3,670.

The defendant’s evidence was to the effect that the plaintiff was engaged at a weekly salary, additional pay for overtime and an allowance for expenses and disbursements, and that he had been fully paid. Having found against the plaintiff and in favor of the defendant on the main issue, we find nothing in the evidence to warrant a further finding that “ it was at least implicit, if not explicit, that in addition to his weekly stipend * * * the plaintiff was to receive some reasonable extra compensation for services * * * ” in the sum of $300 or any other sum.

It follows, therefore, that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs. Settle order on notice.

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Per Curiam.

The finding that plaintiff failed to establish the express contract sued upon was fully justified. The first cause of action predicated thereon sought a recovery of $3,500. The second, in quantum meruit, as amplified by the bill of particulars, alleged the reasonable value of the services to have been $3,670.

The defendant’s evidence was to the effect that the plaintiff was engaged at a weekly salary, additional pay for overtime and an allowance for expenses and disbursements, and that he had been fully paid. Having found against the plaintiff and in favor of the defendant on the main issue, we find nothing in the evidence to warrant a further finding that “ it was at least implicit, if not explicit, that in addition to his weekly stipend * * * the plaintiff was to receive some reasonable extra compensation for services * * * ” in the sum of $300 or any other sum.

It follows, therefore, that the judgment should be reversed, with costs, and the complaint dismissed, with costs.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs. Settle order on notice.

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Bluebook (online)

256 A.D. 900, 9 N.Y.S.2d 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenyon-v-caine-nyappdiv-1939.