Foster v. Standard National Bank , 45 N.Y.S. 1139 ( 1897 )

Van Wyck, Ch. J.

The complaint alleged that between certain dates the plaintiff, át the request of the defendant, furnished labor and performed services which were reasonably worth the sum of $364, and which sum the defendant promised and agreed to pay, and the answer denied that the labor and services were reasonably worth said sum or that the defendant promised or •agreed to pay said sum. '•

The case was tided upon the theory that this pleading by the defendant admitted the quantity of the work. The plaintiff’s proof was that the work was reasonably worth the sum sued for, and hence the value of the work was the issue to be tried and both the quality and quantity of the work was at issue.

At folio 49 the defendant’s counsel asked the plaintiff on cross-examination:

Q. How much time did you spend on that part of the work? (Objected to as immaterial and sustained by the court, saying to the defendant’s attorney: “Ton admit the quantity of the Work,” and at folio 64 a like question by the defendant’s counsel was “ excluded as quantity of work is admitted by the answer.”) Other like questions on cross-examination of the plaintiff and his witnesses were not allowed on the mistaken theory that the quantity of the work was admitted by the answer.

Judgment and order denying new trial reversed and new trial granted, with costs to the appellant to abide the event.

‘McCarthy and* Fitzsimons, JJ., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.