Model Examining & Sponging Co. v. Mark

157 N.Y.S. 763

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 13, 1916
• Status: Published

Opinion

PER CURIAM.

[1] The action is for work, labor, and services, and the only witness called by plaintiff testified that he was unable to say whether there was an agreed price fixed for the work in question, but gave the. reasonable value thereof. The doing of the work having been conceded, the defendants proved that the agreed price was fixed by the plaintiff’s Mr. Siegel, and all bills prior to the one sued upon had been adjusted upon that basis. This testimony was corroborated by the bills for such former work and the checks in payment of same, and fully sustained the defense of agreed price. On that issue the plaintiff was entitled to recover the sum of $35.30, instead of $71.33 claimed, and that we think should have been the judgment of the court upon the whole issue.

[2] As to the counterclaim pleaded, it was not, in our opinion, sustained by that strong and convincing kind of proof required. It was simply tiie story of one of the defendants as against that of plaintiff’s manager, and it was fairly resolved by the learned court in favor of plaintiff.

Judgment reversed, and new trial granted, with $30 costs to appellants to abide the event, unless respondent stipulates to reduce the judgment to $35.30, with appropriate costs in the court below, in which event the judgment, as modified, is affirmed, without costs to either party.