McQueen v. Brown , 41 N.Y.S. 549 ( 1896 )

Van Wyck, Ch. J.

This cause was tried without an objection or exception-by either plaintiff or defendant, except that defendant had noted an exception to the denial of his motion on the' minutes for a new trial. The defendant did not move fór a nonsuit, nor for a dismissal on the merits, nor did he request the direction of' a verdict in his favor. The action was for a balance for work and labor performed by plaintiff in and about a building belonging to defendant.' The plaintiff testifying, in support- of his contention, that the work was done as alleged, and that the balance was due' and unpaid, while the defendant testified that there was a fixed price for part .of the work, and that he had paid such price, and a further sum for the reasonable value of the other work, and he was corroborated by his fifteen-year-old son. This conflicting evidence on the main issue had to be submitted to the jury, and it would have been error fór the judge to have taken- the case from the jury, even if defendant had properly requested a dismissal or verdict in his favor, and the motion.for new trial was properly ■ denied. The judgment and order appealed from are affirmed, with costs.

Schuohman, J., concurs.

Judgment and order affirmed, with costs.