McCormack v. O'Connor

Giegerich, J.

The plaintiff sues for work, labor and services performed and materials furnished in repairing the sidewalk and curbing in front of defendant’s premises, known as Nos. 222, 224 and 226 East Thirty-fourth street, in the borough of Manhattan, city of New York.

The agreement under which the work in question was done is contained in two letters written by the plaintiff to the defendant. The first is as follows:

“ Frank McCormack

“ Mason and Plasterer

“ 469 Fourth Avenue. ¡New York, July 3rd, 1908. “ Dr. John H. O’Connor

“ Dear Sir.— I will furnish labor and materials requisite to repair sidewalks in front of houses ¡Nos. 222, 224 & 226 East 34 St.

“ For the sum of $75.00/100.

“ The above includes furnishing 150 Sq. Ft. of flagging to replace broken or missing flags.

“ Eespt. yours,

“ Frank McCormack.”

The second letter modified the first one, somewhat.

“ Frank McCormack

“ Mason and Plasterer

“ 469 Fourth Avenue. ¡New York, July 15, 1908. “Dr. John ¡EL O’Connor,

“Dear Sir.— I will repair sidewalk & curb in front of ¡Nos. 222, 224 & 226 East 34th as per order of Highways Dept, so as to remove violation on same.

“ Eespdt. Yours,

“ Frank McCormack.

“ Bill will not become due until violation is removed.

“ F. McCormack.”

The defendant contends that there was no evidence on the trial to show that the plaintiff furnished any of the materials or performed any of the labor covered by the contract. The only evidence on this point was given by the plaintiff himself, who presented his case to the court in person, without the aid of counsel; and the contention of the defendant is that his testimony was hearsay and incompetent.

There is no doubt that the plaintiff’s testimony as to what his men did in repairing these sidewalks was without basis of personal knowledge on his part, and its admission would have been reversible error if the defendant’s counsel had objected thereto. But he did not. Even when on cross-examination it was brought out clearly that the plaintiff knew nothing personally about the work done, no motion was made tc strike out his testimony. It is too late to claim on this appeal that it was incompetent and ought not to have been considered by the trial court.

The defendant further claims that the plaintiff did not prove that the violation filed against these sidewalks had been removed. The only testimony in the case on that point was that of the plaintiff that the violations were removed. The defendant objected to-the admission of this testimony, but the trial justice admitted it, saying he wanted to get at the facts. The defendant did not except, when his objection was overruled, and the only inference is that he acquiesced in its coming in. This was the only testimony in the case on the point. The defendant did not dispute the assertion that the violations were removed. This testimony, uncontradicted, was sufficient proof of the fact.

The only question of fact disputed upon the trial was whether the sidewalks had been properly repaired. At the close of the trial both parties agreed that the trial justice should make an inspection of the premises to determine this question. By deciding in favor of the plaintiff, the trial justice necessarily found that the work was substantially performed ; and it is manifestly impossible for this court, under such circumstances, to reverse on the facts upon a point thus left for the trial justice to determine by a personal inspection of the work.

The judgment should, therefore, be affirmed, with costs.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.