Paster v. Meter , 107 N.Y.S. 736 ( 1907 )

PER CURIAM.

Plaintiff is a tailor, and brought this action to recover the price of two ladies’ suits at the agreed price of $35 each and for cleaning and pressing clothes for the defendant; the total amount of plaintiff’s claim aggregating $94.50. The defendant, a physician, claims, and his claim is substantially undisputed, that the plaintiff was indebted to him for services rendered to the amount of $76, and that he had paid some of the items on plaintiff’s bill, notably for one of the suits charged for; and he produced upon the trial a receipted bill which clearly established such payment. 'The receipted bill, together with the items for medical services, aggregate $124.10. Nevertheless, the plaintiff had a judgment for $20.

From an examination of the record it is impossible to ascertain upon what basis of calculation the judgment for this amount was arrived at. The plaintiff claimed $94.50. The amount allowed the defendant, therefore, must have been $74.50; but there is no proof in the case which by any reasonable calculation would disclose such sum. Defendant’s proof was a receipted bill for $37.50, his bill for medical attendance $76, and a claim of $10.60 for overcharges made by the plaintiff. By no combination of these figures can the deduction from plaintiff’s bill of $74.50 be reached. The judgment can be sustained only by the arbitrary use of figures for which there is no basis in the evidence.

No objection was made in the court below that the motion for a new trial was not made in time, and it cannot be raised for the first time upon appeal. Duryee v. Hunt (decided at present term) 107 N. Y. Supp. 734.

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