Kepeos v. Lobel

27 A.D.2d 523, 277 N.Y.S.2d 114, 1966 N.Y. App. Div. LEXIS 2869

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1966
• Status: Published

Opinion

Judgment for the plaintiffs against defendant-appellant in the sum of $9,803.80 unanimously reversed, on the law and the facts, and a new trial granted, without costs or disbursements to any party. Defendant-appellant’s appeal from the dismissal of the complaint as against the codefendant, his wife, is dismissed because of his failure to serve notice of appeal upon her and because plaintiffs did not appeal from such dismissal. When this case was here on a prior appeal, from an order granting summary judgment, we reversed (23 A D 2d 632) and ordered trial of the issues as to whether the services for which plaintiffs seek compensation (1) were necessary, (2) were necessary and were services for which the defendant-appellant may be responsible, (3) were paid by defendant-appellant, and (4) were rendered in reliance upon defendant-appellant’s obligation to pay or otherwise. Regrettably counsel and the court, in nine days of trial under said order, became bogged down in a morass of trivia and confusion of the objects of the trial, and none of said issues was submitted to the jury, except the inherent issue of the value of the services rendered. Moreover, in the course of the trial and the charge the jury were confused hy the conflicting statements of items of services which might properly be considered in the case. The essential issues, therefore, are still unresolved, and must be determined by a new trial. It should also be noted that the efforts expended in securing payment herein have far exceeded the services rendered in the brief period plaintiffs were engaged by defendant wife in 1963; and a majority of the court are of the view that the amount of the verdict was excessive. Concur—■ Breitel, J. P., Stevens, Steuer, Capozzoli and Witmer, JJ.