Opinion
August, 1893.
Leopold Moschcowitz, for plaintiff (respondent).
Leonard J. Langbein, for defendant (appellant).
Plaintiff sued to recover the sum of fifty dollars, the alleged agreed compensation of his assignor for services which the latter claimed to have performed at defendant's request. Defendant denied the making of such agreement, and the justice below gave judgment for plaintiff for twenty-five dollars.
It is obvious that the judgment is not consistent with the facts in evidence, and so should be reversed. Wise v. Rosenblatt, 30 N.Y. St. Repr. 858; 34 id. 1005; 16 Daly, 496. The determination of the controversy rested in the conflicting contentions of the parties. Crediting the statements of plaintiff's assignor, the recovery should have been for fifty dollars; discrediting them, defendant was entitled to judgment. The complaint was not amended to enable the action to proceed as one to recover the reasonable value of the services, nor was any evidence whatever introduced for either party from which the justice could determine such values. The recovery, therefore, was not secundum allegata et probata. Romeyn v. Sickles, 108 N.Y. 650; 1 Silvernail's Ct. of App. 594.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
GIEGERICH, J., concurs.
Judgment reversed and new trial ordered.