
    Daniel Sullivan, Respondent, v. Myer Hellman, Appellant. Tony White, Respondent, v. Same, Appellant.
    Appeal by the defendant from a judgment, rendered by the Municipal Court of the city of Rew York, borough of Manhattan, in each of these actions, which were tried together, in favor of the plaintiffs, upon a trial had before the court without a jury.
    Cohen & Arnold, for appellant.
    Max D. Steuer and A. S'. Levy, for respondents.
   Per Curiam.

These actions are to recover for work, labor and services performed by .the plaintiffs therein and their assignors, in excavating rock upon the appellant’s land, situate at the corner of One Hundred and Seventeenth street and Madison avenue, in the borough of Manhattan.

The appellant entered into a contract with one Lawrence C. Blake, by the terms of which the latter agreed to blast, excavate and remove rock from the former’s said land for the sum of $28,500, to be paid for as the work progressed, every two weeks, at the rate of $1.20 per cubic yard of rock removed, as certified by the surveyor. The contract provided that from the amount due to Blake from time to time, the appellant or his agents should pay the claims of laborers and material men. Payments were regularly made, pursuant to the surveyor’s certificate, which was submitted to the appellant. Another payment was made to Blake on May 17, 1900. He had then stopped work, although the rock had not all been removed, and at that time, he had been paid in excess of the said sum of $28,500. The evidence for the plaintiff, in each case, shows that on May 14, 1900, a committee, representing the men, called upon the appellant and complaining that they were not paid and threatened to stop work. The appellant protested and finally persuaded the men to return, saying, “ Go to work, I will pay you; keep working and I will pay you.” The appellant denies this, but the justice resolved the conflict in the plaintiffs’ favor. It is claimed by counsel for the respondents that the indebtedness in suit accrued after such promise was made. The plaintiff Sullivan testified that the men quit work on May 17, 1900, and it is practically admitted on both sides that work on the job was stopped on that date. Such being the case, the appellant, if liable at all, would be liable, at most, for work performed from the time of the alleged promise, viz., May fourteenth to the date last above mentioned. From the bill of particulars and the evidence, it appears that the claim of the plaintiff in each action, and of their assignors, twenty-eight in number, is for work performed by them for periods ranging from three days to twenty-four days. The record, however, fails to disclose when the work in suit was performed, except that done by the plaintiff Sullivan, as foreman. Whether any of it was done between May fourteenth and May seventeenth, is open to conjecture, but even if it was then done, the payments cannot stand, since the recovery is based in each case upon the entire period sued for.

Apart from all this, the proof is insufficient to support the finding of the trial justice in favor of the plaintiff for the full amount claimed in each case. Thus, in the White case, the claim of the plaintiff was not proven. There the bill of particulars states that the Terone claim is for eight days’ work, whereas the proof shows a performance of but five days’ work. In the Sullivan case the plaintiff’s evidence is still more defective. The claims of CSraco and Frank Solini were not proven and there are variances between the bill of particulars and of the proof concerning the claims of the plaintiff, Rossi, Frank George and William George, respectively.

The judgment in each case must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Giegerich and O’Gormah, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event. 
      
       Opinion rendered by the associate justices after the death of Presiding Justice Beekman.— [Rep.
     