
    CANNELLA et al. v. NOVAK.
    (Supreme Court, Appellate Division, Second Department.
    June 18, 1908.)
    Work and Labor—Actions—Amount of Recovery.
    In an action to recover for plans and specifications furnished defendant, plaintiffs testified that $50 was the fair value of the services, but afterwards amended the complaint to allege the value of the services as $65, but no additional evidence" was offered. The evidence was insufficient to support a judgment for $65.
    Appeal from Municipal Court, Borough of Brooklyn, Fourth District.
    Action by Pasquale Cannella and another, copartners, etc., against Sophie Novak. From , a judgment for plaintiffs, defendant appeals.
    Judgment reversed, unless plaintiffs accept a smaller sum, in which event it is affirmed.
    Argued before WOODWARD, JENKS, HOOKER, MILLER, and GAYNOR, JJ.
    Philip J. Knobloch, for appellant.
    Jos. G. Giambalvo, for respondents.
   WOODWARD, J.

There is no dispute that the plaintiffs in this action are. architects, and that they were employed by the defendant to draw certain plans and specifications for the remodeling of a tenement house owned by the defendant. The plaintiffs claim for the value of the services $65, and the defendant alleges that the price agreed upon was $20, conditioned upon the acceptance of the plans by the tenement house department. The case would present the usual conflict of evidence,, with enough to support the judgment, except for the fact that there is no evidence in the case to support the full amount of the judgment. The plaintiffs claimed $50 as the value of the services. Upon the trial one of the plaintiffs testified that the fair value of the services was $50. At this point plaintiffs’ counsel moved to amend the complaint to allege the value of the services at $65, and the amendment was ordered without objection, but there was no change in the evidence to meet this amended complaint. The result is that, while the plaintiffs have fairly established their claim, there is no evidence to support it above the sum of $50.

Under the authority of section 310 .of the Municipal Court Act (Laws 1902, p. 1578, c. 580), we are authorized to affirm, reverse, or modify the judgment, and we-are of opinion that the judgment should be reversed, unless the plaintiff is- willing to stipulate that the recovery shall be limited to $50 and costs, in which event it should be affirm'ed, without costs. All concur.  