
    Jacob Meehan, Resp’t, v. Jacob D. Butler, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1886.)
    
    Judgment—Action on an agreement—Admission—When not reversed.
    In an action before a justice on an agreement, it was admitted at the outset by defendant’s counsel that “ There is a certain amount due; I do not know the amount. There is the sum of ninety-four dollars to be paid.” Held, on appeal that judgment being rendered for this amount and costs, in view, of the conflicting evidence presented by the return of the justice, there was no reason to overrule it.
    
      J. P. Fallon, for resp’t; John G. Shaw, for app’lt.
   Larremore, C. J.

The appellant relies upon Murray v. Baker (6 Hun., 264), as authority for reversing this judgment. In that case it was held that the plaintiff’s right of recovery was dependant upon a condition precedent with which there was no proof of compliance.

In this case it was admitted at the outset by defendant’s counsel, There is a certain amount due, I don’t know the amount. There is the sum of ninety-four dollars to be paid. ” For this amount and costs, judgment was rendered, and I fail to see in view of the conflicting testimony presented by the return why the conclusion of the justice should be overruled.

The judgment appealed from, should be affirmed with costs.

Daly, J.

I concur in affirming because there was a dispute as to the terms of agreement, although the plaintiff’s testimony is not very clear, notwithstanding that he is evidently an honest witness, and meaning to tell what actually occurred. The agreement was not in writing, although there is a memorandum of defendant’s version of it made

soon after it was entered into. There is also some question on the evidence as to whether plaintiff was, or was not authorized to take any part of the sand he had removed from the cellars. If he might do so, then defendant ought not to have prevented his taking what had been so removed and placed on the lots.

The plaintiff had done the work, and the only question was the mode of payment; where there is conflict as to the agreement on that point, the finding should not be disturbed.

Daly and Van Hoesen, J. J. concur.  