New York Novelty Co. v. Mela , 41 N.Y.S. 555 ( 1896 )

Van Wyck, Ch. J.

The plaintiff contended by proof and pleading that defendant agreed to pay not exceeding $100 for certain alterations to be made in steam-pipe connections in defendant’s premises, which he had leased to plaintiff for a three years’ term, at $7,500 rent annually; while the defendant testified that at the conversation he had with plaintiff’s agent about the steam-pipe connections to be made, this agent said that his company already had the pipes in the premises from which they intended to move, and that the' pipes could be taken out and brought to defendant’s premises if defendant would pay' for making the connections, and that in response he (defendant) had thought it over and considering that it probably would cost $25 or $30, and that as he did not care for a matter of $20 or $30, he would stand it. The old pipe was not taken out and brought to defendant’s premises, b.ut plaintiff caused the connections to be made with new pipe, and paid $125 for such pipe and the labor for connecting same. The plaintiff’s agent testified that before action was brought the defendant had offered to pay $50, which was refused. The jury found for plaintiff for $50, evidently concluding that defendant had agreed to pay for the labor, but not for the material, and that as defendant had offered to pay $50, the labor was worth that sum. The appellant’s contention is that, because the plaintiff’s, witnesses had testified that it was entitled to $100 or nothing, the verdict should have been for plaintiff for that amount, or for the defendant. The jury, .as it had the .right, believed a part of plaintiff’s evidence and a part of defendant’s evidence, and. their verdict is not against evidence or weight of evidence. Judgment and order, affirmed, with costs.

Fitzsimons, J., concurs.

Judgment and order affirmed, with costs.,