Little v. Johnson

Appellate Division of the Supreme Court of New York

Little v. Johnson

117 A.D. 500, 102 N.Y.S. 754, 39 N.Y. Civ. Proc. R. 30, 1907 N.Y. App. Div. LEXIS 288

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

DecidedFebruary 8, 1907

StatusPublished

This text of 117 A.D. 500 (Little v. Johnson) 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

Little v. Johnson, 117 A.D. 500, 102 N.Y.S. 754, 39 N.Y. Civ. Proc. R. 30, 1907 N.Y. App. Div. LEXIS 288 (N.Y. Ct. App. 1907).

Pincite

Opinion

Scott, J.:

Plaintiffs sued upon a quantum meruit for services alleged to have been rendered to defendant’s testator in preparing certain preliminary studies .for a city house. The plaintiffs produced, as the • studies for which compensation was sought, a number of sketches,for the most ..part rough and obviously intended, merely as suggestions of elevations and room plans. Of course, in order to recover it was incumbent upon plaintiffs to show that they had prepared the sketches under some employment or authorization by the deceased and some agreement, express or implied, upon his part to pay com[501]*501pensation therefor. • The deceased owned no property in the city upon which to erect the house, and had not fully decided to acquire such property. He seems to have contemplated the possibility of acquiring property and building a house, and it is quite possible that plaintiffs’ purpose in preparing the sketches was to induce him to carry his contemplated purchase into execution. Were it not for tiie admission of- some evidence which we deem to have been improperly admitted, there would not have been sufficient evidence of employment to justify submitting the case to the jury. The plaintiff Little was called as a witness on his own behal f. Of course he could not testify, and was not permitted to testify as to any oral communication made to him by the deceased. The plaintiffs, however, sought to establish an implied promise on the part of the deceased to pay for the sketches, by showing that lie had frequent interviews and consultations w'ith them respecting the sketches while they were .being prepared, and the plaintiff Little, under sufficient objections and exceptions, was allowed to testify that he had a number of consultations and interviews with deceased, and especially an interview with him and his wife, at which the plans were discussed between the witness and the wife of the deceased, and the witness further testified that a large part of the services for which compensation was sought consisted of these very consultations and interviews. Under the circumstance this evidence was clearly incompetent under section 829 of the Code of Civil Procedure. It is well settled that this section not only forbids direct testimony by a survivor that a personal transaction did or did not take place, and what did or did not occur between the parties, but also every attempt by indirection to prove the same thing. (Clift v. Moses, 112 N. Y. 426.) The plaintiffs sought to establish the fact that deceased had employed them and agreed to pay for their work, by way of inference from the fact that he constantly consulted with them while they were engaged upon the work. Little’s testimony as to the fact and number of these consultations was, therefore, an attempt to prove by himself the facts as to the personal relations - between himself and the deceased from which the inference of employment and promise were to be drawn. (Lerche v. Brasher, 104 N. Y. 157.) The admission of this evidence requires the reversal of the judgment.

[502]*502The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Lahghlin and Clarke, JJ., concurred. ■ .

Judgment and order reversed and new- trial ordered, costs to appellant to abide event. Order filed.

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Scott, J.:

Plaintiffs sued upon a quantum meruit for services alleged to have been rendered to defendant’s testator in preparing certain preliminary studies .for a city house. The plaintiffs produced, as the • studies for which compensation was sought, a number of sketches,for the most ..part rough and obviously intended, merely as suggestions of elevations and room plans. Of course, in order to recover it was incumbent upon plaintiffs to show that they had prepared the sketches under some employment or authorization by the deceased and some agreement, express or implied, upon his part to pay com[501]*501pensation therefor. • The deceased owned no property in the city upon which to erect the house, and had not fully decided to acquire such property. He seems to have contemplated the possibility of acquiring property and building a house, and it is quite possible that plaintiffs’ purpose in preparing the sketches was to induce him to carry his contemplated purchase into execution. Were it not for tiie admission of- some evidence which we deem to have been improperly admitted, there would not have been sufficient evidence of employment to justify submitting the case to the jury. The plaintiff Little was called as a witness on his own behal f. Of course he could not testify, and was not permitted to testify as to any oral communication made to him by the deceased. The plaintiffs, however, sought to establish an implied promise on the part of the deceased to pay for the sketches, by showing that lie had frequent interviews and consultations w'ith them respecting the sketches while they were .being prepared, and the plaintiff Little, under sufficient objections and exceptions, was allowed to testify that he had a number of consultations and interviews with deceased, and especially an interview with him and his wife, at which the plans were discussed between the witness and the wife of the deceased, and the witness further testified that a large part of the services for which compensation was sought consisted of these very consultations and interviews. Under the circumstance this evidence was clearly incompetent under section 829 of the Code of Civil Procedure. It is well settled that this section not only forbids direct testimony by a survivor that a personal transaction did or did not take place, and what did or did not occur between the parties, but also every attempt by indirection to prove the same thing. (Clift v. Moses, 112 N. Y. 426.) The plaintiffs sought to establish the fact that deceased had employed them and agreed to pay for their work, by way of inference from the fact that he constantly consulted with them while they were engaged upon the work. Little’s testimony as to the fact and number of these consultations was, therefore, an attempt to prove by himself the facts as to the personal relations - between himself and the deceased from which the inference of employment and promise were to be drawn. (Lerche v. Brasher, 104 N. Y. 157.) The admission of this evidence requires the reversal of the judgment.

[502]*502The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Lahghlin and Clarke, JJ., concurred. ■ .

Judgment and order reversed and new- trial ordered, costs to appellant to abide event. Order filed.

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Bluebook (online)

117 A.D. 500, 102 N.Y.S. 754, 39 N.Y. Civ. Proc. R. 30, 1907 N.Y. App. Div. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-johnson-nyappdiv-1907.

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