
    Charles A. Whipple, Respondent, v. T. Charles Farrelly, Appellant.
    First Department,
    February 4, 1910.
    ■ Trial — cross-examination — price received by artist for painting portraits — quality of work.
    Where a portrait painter suing to recover the reasonable worth of a portrait . testified that he had painted the portraits of certain distinguished public men, the defendant on cross-examination is entitled to show how he came to be employed to paint the portraits and what he received therefor.
    Where there is an issue as to whether the defendant under the contract was entitled to reject the portrait if unsatisfactory, and the plaintiff has testified that members of the defendant’s family examined it and made no objection, it is error to exclude evidence in rebuttal.
    Appeal by the defendant, T. Charles Farrelly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 14th 'day of May, 1909, upon the verdict of a jury, and also from an order bearing date the 12th day of May, 1909, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      
      C. N. Bovee, for the appellant.
    
      George P. Breekenridge, for the respondent.
   Miller, J.:

The plaintiff, a portrait painter, .asserts that he was employed ■ by the defendant to paint a portrait of the látter’s father, that his work was reasonably worth the sum of $1,500, and that that was his price for painting such a portrait. The defendant asserts that he gave the plaintiff a photograph from which to paint a portrait with the understanding that, if it was not satisfactory, he should not be required to accept it. The defendant is corroborated by the testi-. mony of one witness; the plaintiff is uncorroborated. The plaintiff relied solely on his own testimony to show the value' of his services. The defendant called an art critic who pointed out defects in the portrait and testified that it was not worth more than $250.. The defendant refused to accept it on the ground that it was not satisfactory. The jury rendered, a verdict for the plaintiff for the full amount claimed.

The plaintiff testified óri his direct examination that he had painted the portraits of many distinguished public men, naming them. On cross-examination questions were addressed to him for the purpose of showing how lie came to be employed to paint, and what he received for, such portraits; but the court sustained the plaintiff’s objections thereto. W e think that such rulings; were erroneous and prejudicial. The plaintiff’s direct testimony oil that subject was not wholly irrelevant, as his' previous commissions tended somewhat to reflect his standing and prestige as an artist. The testimony was calculated to, aiid doubtless did, influence the jury. The defendant should, therefore, have been permitted to cross-examine the plaintiff on that subject. Moreover, what the plaintiff had been accustomed to receive for doing work like that done for the defendant was relevant to the question of value. The value of an artist’s work depends so much upon his reputation that it would seem to be quite impossible definitely to fix a standard of value. . What a Whistler could command would have little bearing on what an unknown artist should receive, however great the merit of the latter’s work. The question at issue was the reasonable value of this particular portrait, painted by this particular artist, and the price which he usually charged and received for such work bore directly upon that question.

Another ruling should be noticed. The plaintiff testified that the portrait was examined by different members of the defendant’s family and that they made no objection to it. The defendant offered to rehut that testimony, but the evidence was excluded. In view of the issue as to whether the acceptance of the portrait by the defendant was conditional on its being satisfactory, that ruling was erroneous.

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

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  