Meehan v. Butler

Decided December 5, 1886

New York Court of Common Pleas · decided 1886-12-05

<p>Judgment—Action on an agreement—Admission—When not reversed.</p> <p>In an action before a justice on an agreement, it was admitted at the outset by defendant’s counsel that “ There is a certain amount due; I do not know the amount. There is the sum of ninety-four dollars to be paid.” Held, on appeal that judgment being rendered for this amount and costs, in view, of the conflicting evidence presented by the return of the justice, there was no reason to overrule it.</p>

Decided 1886-12-05

Daly, J.

¶1I concur in affirming because there was a dispute as to the terms of agreement, although the plaintiff’s testimony is not very clear, notwithstanding that he is evidently an honest witness, and meaning to tell what actually occurred. The agreement was not in writing, although there is a memorandum of defendant’s version of it made

¶2soon after it was entered into. There is also some question on the evidence as to whether plaintiff was, or was not authorized to take any part of the sand he had removed from the cellars. If he might do so, then defendant ought not to have prevented his taking what had been so removed and placed on the lots.

¶3The plaintiff had done the work, and the only question was the mode of payment; where there is conflict as to the agreement on that point, the finding should not be disturbed.

¶4Daly and Van Hoesen, J. J. concur.