
    John Cullen, Respondent, v. Patrick Gallagher, Appellant.
    (New York Common Pleas — Additional General Term,
    December, 1895.)
    1. Services—Quantum meruit—Evidence.
    - In an action to recover the value of work done for which no rate of compensation was agreed upon, it is proper to show what the plaintiff ' paid his men for doing the wOrlc.
    S. Appeal — Exclusion op evidence, when not prejudicial error. ■'•' An error in Excluding evidence is not prejudicial where the same . fact is sufficiently shown by other testimony.
    Appeal from a judgment rendered in the District Court of the city of New York for-the ninth judicial district.
    
      Hastings & Gleason, for appellant.
    
      Daniel Daly, for respondent.
   Per Curiam,

This action • was. brought to recover the valúe of work done for the defendant at his request. There •is no stipulation in the agreement as to the rate of 'compensation.. ■ It," therefore, became necessary-for the plaintiff to show the value of the work, and he gave evidence tending to show the number of days his workmen were employed and the fair value of the work. - On the cross-examination of one of his witnesses the defendant asked : “ Q. What wages were you paid? A. Stonecutter’s wages. • Q. How much was it?” This was objected to by the plaintiff on the ground that it was immaterial, and the court sustained the objection, remarking “ I don’t think it is proper,” to which defendant excepted. As a general rule the cost of an article or thing is not the criterion of its value. In most cases the' question is its market value, although' it has been said “ whether the price paid for a chattel, or the price at which it is sold, be admissible in evidence depends upon the special circumstances of each case ” (Beach v. Raritan, etc., 37 N. Y. 469), and, accordingly, many cases may be quoted where such cost was admitted in evidence, and it may be conceded in this case that the question should have been allowed, but yet, we think, the defendant was not injured by the ruling of the court. The witness had just before testified that he received stonecutter’s wages, and it was in evidence, without contradiction, that the union wages for stonecutters was four dollars and fifty cents per day, so that the question was substantially answered. The real question for the court to determine was the fair value of the plaintiff’s services. That was testified to by the plaintiff and a witness called on his behalf to be worth from five dollars to six dollars a day, "and no evidence was given by the defendant to contradict this, the principal question raised upon the trial being as to the number of' days the men worked." On this there was some conflict, but we think there was quite enough to justify the court in finding as it did as to the number of days for which compensation was allowed at the lowest rate testified to.

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

Present: Bookstaver and Bischoff, JJ.

Judgment affirmed, with costs.  