Burns v. Swan , 45 N.Y. St. Rep. 103 ( 1892 )

Bookstaver, J.

This action was brought to recover for services in appraising damages by fire to the machinery of Loudon & Johnson. The evidence as to the rendition of. the services sued for was practically admitted upon the trial, and the value of such services was not disputed; the only question being whether the defendant was bound to pay for the services rendered by the plaintiff, and, if so, whether the action was prematurely brought. After an examination of the evidence, we think the liability of the defendant to pay the plaintiff was clearly established, and that the judgment of the court below was right in that particular. We also think that, under the agreement between the defendant and Loudon & Johnson, the action was not prematurely brought. The former had received from the latter $560.79, much more than sufficient to pay for these services; and the defendant admitted that lie was to pay all disbursements made by them. Whether anything was due from Lou-don & Johnson to the defendant at the time this action was brought was a matter in dispute between them. It was not for the court below, nor is it for this court, to determine whether anything was due or not. This judgment will not in any way prejudice the defendant in his contention with Loudon & Johnson. The judgment should therefore be affirmed, with costs.