
    Ida M. Newcombe, as Executrix, Respondent, v. Samuel P. Hyman, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Appeal — Harmless error — Books of account.
    The admission in evidence of books of account, where no sufficient ground therefor has been laid, is harmless error, where they only show the rendition of the services which are the subject of the action and this fact is practically conceded.
    
      
      2. Account stated — ¡Rendition of bill.
    The mere rendition of a bill for services does not conclude either party on the question of their value.
    3. Services — Admissions.
    In an action upon a quantum meruit for service's performed by plaintiff’s testator, testimony of the defendant as to an offer, of settlement, and an agreement with decedent as to the amount to be paid, is available to the plaintiff as an admission against interest.
    4. ' Witness — Credibility.
    The jury is not bound' to believe the testimony'of a party to the action, especially where it appears that statements in his verified pleading are false and his testimony contains statements showing it ■ to be improbable.
    Newcombe v. Hyman, Í4 Mise. 438, reversed.
    . Appeal by defendant from judgment of the General Term of the City Court, affirming a judgment entered on verdict, of jury in favor of plaintiff. •
    . Epstein Brothers,. for - appellant.
    Booraem, Hamilton, Beckett & Ransom, for respondent.
   McAdam, J.

The action was to recover $500 for professional services rendered to the defendant by the late law firm of Donohue, Newcombe & Cardozo. By reason of the death of Mr. Neweombe, the firm dissolved July 26, 1891, and, .in settling the affairs of the partnership, the claim in suit was transferred to the widow of Mr. Newcombe, as Ms executrix, and in that capacity she sues to recover the sum claimed.

The bill representing .the claim is in these words: ■ ■

“ 15 April, 1889.
“ S. P. Hyman, Esq., "
■“ To Donohue, Newcombe & Cardozo, Dr.
u 1S8S. August, September and' October.
‘‘''To professional services in.the matter of your accounting as assignee of J. S. Cohen & Co.;' attendances on references and motions; your arrest; proceedings in district attorney’s office and before grand jury; negotiations, for settlement; taking releases; assignments and final adjustment, $500.” '

Eo items other than those which appear in the bill were furnished, nor do the books of the firm give much more information.

The books of the firm were received in evidence, under object t-ion and exception. They merely showed the rendition of the services, and, as that was practically conceded by the defendant, their admission, even if erroneous under the preliminary proofs offered, did him no injury, and the exception to their admission is of no importance.

The only serious exception in the case is that taken to the absence of proof of reasonable value. The charge made in the books was merely the estimate of value which Mr. Eewcom.be placed upon his services, to the accuracy of which the defendant • does not seem to have in any manner assented. The mere rendition of the bill did not conclude either party on the question of value. Williams v. Glenny, 16 N. Y. 389.

The defendant claims that, though he never formally objected to the bill, he never assented to the amount of the charge. He testified (without objection) that he called upon Mr. Eewcombe and offered' him $250 in settlement' of the bill, and that they finally agreed on $300. This is the only evidence establishing value in the case. It is available to the plaintiff as .an admission against interest made by the defendant (Cook v. Barr, 44 N. Y. 156), and this, though the action is 'on a quantum meruit, and not to recover the agreed compensation. Fells v. Vestvali, 2 Keyes, 152; Goetz v. Van Au, 12 Civ. Proc. Rep. 104, and note; American Tiling Co. v. Reich, 11 N. Y. Supp. 776.

The defense was payment. In the answer the defendant swore that the payment was made on or'about. April 15, 1889, and, on the trial testified that the time was February, 1891, and that what he had sworn to in the answer was false. There were other statements in his story which made it improbable; and, being interested in the result, the jury were under no obligation to believe his testimony.

Mr. Maas, who undertook to corroborate the statement as to payment, was a partner of the defendant, and not disinterested to such extent as to require the jury to believe the evidence he gave. Kavanagh v. Wilson, 70 N. Y. 177, and kindred cases. It is only where a witness, who is disinterested and in no way discredited, testifies to a fact within his- knowledge, which is not of itself improbable or in conflict with other evidence, that his testimony must be believed. Arms v. Arms, 13 N. Y. St. Repr. 196; Lomer v. Meeker, 25 N. Y. 361; Elwood v. Tel. Co., 45 id. 549; Kelly v. Borroughs, 102 id. 93.

Considering the fact that neither the check upon which the money to pay the bill is, said to have been procured, nor the receipt claimed' to have, been given by Mr. Kewcombe when the alleged payment was made, was produced or its absence satisfactorily accounted for, the value of the testimony adduced by defendant was seriously impaired;’it was certainly not of that demonstrative or impressive character likely to carry conviction to the minds of jurors, or which they are bound as of course to credit and adopt. ’

The lips of the party to whom the alleged payment was made were sealed in death, and the defendant was allowed every conceivable latitude to make out his defense, even to the extent of giving his own version of the transaction alleged to have been had with the testator in his lifetime.

The case was essentially one for a jury to determine in the light of all the surrounding circumstances, giving proper weight, to the interest of the parties testifying and the inherent" probability or improbability of their story. • It was not one where the court could have directed a verdict. The jury had to reach a result from the evidence; they found against the defendant; and the trial judge and the General Term of'the court below have approved of the finding. We will assume, therefore,, that the agreed $300 was not paid.

' The 'difficulty with the verdict, however, is that the jury found in favor of the plaintiff for the entire .amount of the bill ($500, with interest) instead of the value of the services, as legally estab- • lished. To correct this error, the judgment appealed from will have to be reversed and a new. trial ordered, with costs to the appellant to abide the event, unless within ten days the plaintiff stipulates to reduce the damages recovered in the court below to $300, with interest, in which event the judgment as modified will be affirmed, without costs upon this appeal

Daly, P. J., and Bischobt, . J., concur. . .........

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce the recovery to $300 and interest, in which event judgment as' modified affirmed, .without costs.  