Citation Numbers: 158 N.Y.S. 706
Filed Date: 5/4/1916
Status: Precedential
Modified Date: 10/17/2022
The complaint alleged that the plaintiff placed in the possession of the defendants a photographic lens for the purpose of being repolished, which' work was to be done for the agreed sum of $3; that subsequently plaintiff tendered to defendants said sum of $3, and demanded the return of the lens, which was refused, and damages for its value were alleged to be $55. The answer was a general denial.
Upon the trial the plaintiff testified that he called at defendants’ place of business and saw the defendant Halpin; that he showed him the lens, and that Halpin agreed to do the work for the sum of $3; and that he received from Halpin a paper, which was received in evidence. _ This paper contained the letter head of the defendants, and following the description of the instrument contained these words: "To be repolished, charges $3.” This paper was not signed by any one. Plaintiff also testified to a demand upon Halpin, and a refusal by him to deliver the property to plaintiff, unless paid the sum of $5. Halpin admitted handing the above-mentioned paper to plaintiff, but insisted that he loaned plaintiff $3 upon the lens, and had not been paid. Plaintiff testified the value of the lens was $55, and defendant testified it was worth $10 only. Neither qualified as experts upon the value of that kind of property. The court below directed the following judgment to be entered:
“I hereby find and decide that the plaintiff is entitled to the possession oí the lens, the value of which I fix at $12, upon payment to the defendant after trial, and the clerk is directed to enter judgment accordingly.”
The clerk, however, entered a judgment in the following form:
“Judgment.
“Judgment is rendered in favor of plaintiff for possession lens and against defendant for twelve (12oo/100) dollars and three ($8o<>/ioo) costs and disbursements as taxed, amounting to fifteen dollars ($15.00).
“Dated October 15, 1915.”
Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event.