B. Petzoldt Co. v. Cohn

BISCHOFF, J.

The action was brought for “the agreed price and value” of work done, and, since the answer placed in issue every averment relating to “price and value,” the plaintiff clearly had the affirmative. Wall v. Buffalo Co, 18 N. Y. 119 Yet the record discloses that the burden of proof upon all the issues was placed upon the defendant, this being the ruling announced at the opening of the trial. The judgment rendered certainly indicates that no evidence was expected at the plaintiff’s hands; the return being destitute of proof of any agreement whatever with regard to the price for the work, and the recovery upon the theory of a quantum meruit is not supported by the form of the averments of the complaint. Assuming, indeed, that the slight and unsatisfactory evidence of value which is contained in the record was relevant to the cause of action, we cannot treat the judgment as supported, since the justice’s erroneous ruling as to the burden of proof precludes our presuming that the evidence was weighed and found sufficient to establish the affirmative of the issue.

The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.