James Cargain, Jr., Resp’t, v. William W. Everett, App’lt.
(Supreme Court, General Term, Second Department,
Filed December 14, 1891.)
1. Contract—Performance—Quantum meruit.
When the complete performance of a contract is prevented by the failure-of the owner of the building to supply materials as called for by the contract, the contractor may recover on a quantum meruit.
2. Justice's court—Amendment of pleading.
Where the proof shows that the work done was worth more than-the amount claimed in complaint, the complaint may be amended in that respect at the close of the trial.
3. Same—Jury.
Until the new jury list is filed with the justice, it is his duty to draw a jury from the old list.
Appeal from judgment of the county court of Putnam county, affirming judgment in favor of plaintiff recovered upon verdict of a jury in justice’s court.
*619Action to recover for services rendered by plaintiff in partially painting a house for defendant. Under the contract therefor defendant was to furnish the materials, but he failed to do so.
On the return day, July 22,1890, the defendant demanded a jury trial, and the justice thereupon drew one from the list of jurors drawn in 1887. On the adjourned day defendant moved to quash the panel on the ground that it was drawn from the old, and not from the new list, and that the term of office of the jurors on the old list had expired, which motion was denied. It appeared that a new list had been filed with the town clerk, July 7, 1890, but such list had not been filed with the justice.
At the close of the testimony the’ complaint was amended by increasing the amount demanded, to conform to the proof.
Odie Close, for app’lt; Clayton Ryder, for resp’t.
Pratt, J.
Plaintiff agreed to paint a house for defendant for $100, material to be supplied by defendant.
When the work was partially done the material gave out; defendant neglected to supply more, and after waiting a reasonable time, plaintiff brought suit. He proved the number of days work done, and that the reasonable value of a day’s work was $2.50, and for the amount thus produced he recovered judgment. That was right. To enable him to recover that amount it was necessary to amend the complaint, in which the value of the work was alleged at an amount less than the proof on the trial showed. That amendment was properly allowed.
The justice drew the jury from the list which had been filed with him by the town clerk. It appears that a new jury list had been prepared but not yet been filed with the justice by the town clerk. Until thus filed, it was the duty of the justice to draw the jury from the old list, being the one last filed with him. Laws 1889, chap. 505.
The appeal is without merit and judgment is affirmed.
Barnard, P. J., and Dykman, J., concur.