Nadelman v. Pichel , 71 N.Y.S. 1142 ( 1901 )

Per Curiam.

There is no certificate or statement that the case contains all the evidence. We are, therefore, limited upon this appeal to an examination of the exceptions taken by the appellants during the trial.

After the plaintiffs had opened their case to the jury, the following proceeding was had: “Defendants’ Oounsel; I would like to ask the attorney for the plaintiffs to elect on what cause of action he desires to proceed. It is pretty hard to tell whether he proceeds for work, labor and services, or for damages. [Motion denied. Exception.] ”

Assuming this to be a request, or to be a motion in the defendants’ behalf to compel the plaintiffs to select which of two conflicting causes of action they would try, an examination of the complaint shows clearly that but one cause of action is alleged therein. The plaintiffs allege the contract, their performance and readiness to perform, and defendants’ refusal to accept, and this is coupled with a general allegation of damage.

The only other exception taken is to be found at folio 39 of the case on appeal, and it appears that the objection was made after the question was answered, and the grounds of the objection are not stated. If, however, the exceptions did present the question properly for review, then the evidence, we hold, was competent on the question of damages. Plaintiffs were entitled to recover under the contract, if anything, for the finished trays, one dollar and ninety cents, and that is all they did recover. The question of profit thereon is immaterial.

Judgment and order appealed from affirmed, with costs.

Present: Eitzsimoks, Oh. J., and .O’Dwyer, J.

Judgment and order affirmed, with costs.