54 N.Y. St. Rep. 134

Sigmund Fuld, Resp’t, v. Abraham Kahn, App’lt.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Judgment—Must conform to pleadings and proofs.

Plaintiff sued for an alleged agreed compensation of fifty dollars for services; defendant denied making the agreement, and there was no evi*135dence as to the value of the services. The justice rendered judgment for twenty-five dollars. Held, error; that the judgment was not consistent with the facts alleged or proven.

Appeal from a judgment of the district court in the city of Hew York for the seventh judicial district in favor of plaintiff.

Action-to recover upon a special agreement for services alleged to have been rendered by plaintiff’s assignor at defendant’s request.

Leopold Moschovitz, for resp’t; Leonard J. Langbein, for app’lt.

Bischoff, J.

Plaintiff sued to recover the sum of fifty dollars, the alleged agreed compensation of his assignor for services which the latter claimed to have performed at defendant’s request. Defendant denied the making of such agreement, and the justice below gave judgment for plaintiff for twenty-five dollars.

It is obvious that the judgment is not consistent with the facts in evidence, and so should be reversed. Wise v. Rosenblatt, 30 St. Rep., 858; 34 id., 1005; 16 Daly, 496. The determination of the controversy rested in the conflicting contentions of .the parties. Crediting the statements of plaintiff’s assignor, the recovery should have been for fifty dollars; discrediting them, defendant was entitled to judgment. The complaint was not amended to enable the action to proceed as one to recover the reasonable value of the services, nor was any evidence whatever introduced for either party from which the justice could determine such values. The recovery, therefore, was not secundum allegata et probata. Romeyn v. Sickles, 108 N. Y., 650; 1 Silv. Ct. App., 594; 13 St. Rep., 864.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

Giegerioh, J., concurs.

Fuld v. Kahn
54 N.Y. St. Rep. 134

Case Details

Fuld v. Kahn
Decision Date
Aug 9, 1893

54 N.Y. St. Rep. 134

New York



Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!