
    Arthur J. Connolly, Respondent, v. William H. Clark, Appellant.
    (City Court of New York, General Term,
    May, 1897.)
    Pleading — Burden of proof.
    In an action for work, labor and services the complaint alleged that plaintiff was to receive the agreed sum of $2 per foot for boring in earth, and $2.50 for boring in rock, and that he bored through nine feet of earth and 101 of rock. The answer admitted the employment, denied knowledge as to the depth of the well, denied the agreement as to the price, and alleged affirmatively that, the ratio of charge was to be $2 a foot for earth and $2.50 a foot for rock, but in no event was •the aggregate cost to exceed $150, for which judgment was offered. No question was raised as to the number of feet bored. Held, that the burden of proof as to the terms of the contract rested upon the plaintiff.
    Appeal from judgment in favor of plaintiff entered upon a verdict, and from order denying a motion for a new trial.
    
      Charles Blandy, for appellant.
    S. A. Noyes, for respondent.
   O’Dwyer, J.

This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying the defendant’s motion for a new trial.

The action was brought on a quantum meruit, for work, labor and services in boring a well on the defendant’s premises at the alleged agreed pnce of $2 per foot for boring in earth and $2.50 per foot for boring in-rock, the plaintiff alleging that he bored through nine feet of emth and 101 feet of rock, making the charge the sum of $270; to which was added the sum of $14.51 for pipe and $25 for a pump. 1

The defense was an-admission of employment, a denial of knowledge's to the depth of the well, a denial as to the alleged agreement as to the price, and an affirmative defense that the ratio- of charge should be $2 a foot for earth and $2.50 a foot for rock, but in no event was the aggregate cost to exceed the sum of $150, and that was followed by an offer of judgment for the latter sum, with interest and costs.

Was the burden of proof under the pleadings and evidence with the plaintiff or the defendant is one of the questions brought up’ for review on this appeal.

The trial justice in his' general charge said, the burden was ripon the plaintiff to establish his cause of action by a preponderance of evidence, but, at the request of - the plaintiff’s counsel against the objection of the defendant, charged:

That the burden of,proof of proving that there was an agreement for the $150 is upon the defendant;” also in order that the jury may find for the plaintiff in the sum of $150, as claimed by the defendant, they must be satisfied by a preponderance of evidence on the part of the defendant that there was such an agreement.”

This part of the charge was erroneous, in that it stated improperly the rule as to the burden of the proof.

From such charge the jury were bound to consider that in the case before.them for decision the burden rested on the .defendant of showing, by a preponderance of evidence, that under the contract between the parties defendant was not bound to pay more than the sum of $150 for the work. -

It placed upon, the defendant the burden of proof, which, under the pleadings, and the facts shown, rested on the plaintiff.

It relieved the plaintiff of the burden he assumed under his complaint when he brought the action, and cast this burden on the defendant, to the latter’s injury, and -this was error.

On the trial the only substantial controversy was as to the terms- of the contract under which the work was done.

Ho question was raised as to the actual number of feet bored. The plaintiff gave his version of the contract and the defendant gave his version of it.

The only difference between them was whether the contract was that the plaintiff should receive the agreed price of compensation for whatever number of feet he should dig, or whether plaintiff should not receive more than the sum of $150 in any event.

The whole matter was a controversy over the terms of the contract.

The plaintiff in his complaint expressly alleged that the contract was that he was to have such ratio of price for all the work done.

The defendant in his answer expressly denies this, and thus was raised an issue as to the contract in this respect, upon which the plaintiff had the affirmative.

The defendant in his answer also sets forth his version of the contract.

The question presented to the jury was whose version of the contract was the correct one, and on this question the plaintiff held the affirmative and had the burden of proof.

He was bound to prove that the' contract was. as he alleged it, or he could only recover the $150, for which the defendant offered judgment. Continental Nat. Bank v. Strauss, 137 N. Y. 148; Doyle v. Unglish, 143 id. 556; Farmers’ Loan & Trust Co. v. Siefke, 144 id. 354; Whitlatch v. Fidelity Co., 149 id. 46.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Conlan and Schuchman, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event. -  