Huller v. Wynne , 16 Misc. 580 ( 1896 )

Daly, P. J.

Li the fall of 1892 the defendant gave to Morris Schwartz, who. was carrying on business for his wife, the plaintiff’s •assignor, as a furrier, two sealskin garments, one of which had-been previously purchased from him fon $225, and. a mink garment,, all to be repaired or altered. The garments were returned, as finished, but were sent back to Schwartz'for further alterations... When they were subsequently delivered the- defendant waa cam-pelled, as was claimed, to take them to another furrier to have them put in order at an expense of $75; and the sum of $30 was counterclaimed against the demand of the plaintiff. .

The case presented a question of fact, (1) as to whether there was originally a contract for a specified sum for the alterations and repairs, or, (2) in the absence of a special agreement, whether the labor and material in the work were worth the sum charged, and, (3) whether the work was properly performed' by the plaintiff’s assignor, and whether she was chargeable with the expense subsequently incurred by the defendant. Upon these points the testimony was extremely conflicting and presented a question which the justice determined in favor of the plaintiff, holding, in effect, that the work was properly performed and was worth the sum sued for.

Upon such a conflict of testimony, we are not warranted in disturbing the judgment. Upon the return as presented to us, it was a fair case for the exercise of judgment by the justice.

The exceptions to the admission and exclusion of testimony do not show error. The objection to the allowance of the question to plaintiff: “ What is the amount due? ” was not followed by a ruling or exception. The objection was: “ Objected to unless he knows;” and the witness was not permitted to answer until he had testified that he did know. The objection to the question: “ Who is Ambrose P. Uullar? ” was not followed by a ruling or exception, and the return shows no error. Inquiry as to the amount paid for the assignment was properly excluded.

The judgment must be affirmed, with costs.

MoAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.