Worm v. McKinley Realty & Construction Co.

97 N.Y.S. 374

Opinion

DOWLING, J.

At the close of the testimony, upon motion of the defendant, the complaint was dismissed by the court for failure of proof. The plaintiffs claimed to recover for work performed for the defendant, first, upon buildings situated at 143d street; second, work done at the office of the defendant; third, work done at 140th street and Lenox avenue; and, fourth, work done at 950 Sherman avenue. The plaintiffs claim that the contracts under which the work was performed were made by one Newmark, the president of the defendant. The testimony given by the plaintiffs is very meagre and unconvincing, except as to one item. As to that there is testimony that the plaintiffs were requested by the defendant’s president to put into their office a wardrobe, shelvés, a desk, and some brackets, which was. done, and the .value thereof was shown and was in no way disputed. This testimony was sufficient to warrant a judgment for the .plaintiffs, and for the services thus proven they had proved a prima facie cas.e, and consequently the dismissal of the complaint was error.

Judgment reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.