
    COLE, Respondent, v. KUNKELY et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    May 29, 1912.)
    Action by Frederick B. Cole against Anna M. Kunkely, individually and as administratrix, etc., and others.
   PER CURIAM.

Judgment reversed, and new trial granted, costs to abide the final award of costs, upon the ground that there is no evidence to prove the agreement, alleged in the complaint, that the house should be built for a fair and reasonable profit over and above the cost of the labor employed and materials furnished; nor is there competent evidence of the reasonable value of the labor employed and materials furnished.

WOODWARD, J.,

dissents upon the ground that the evidence given by the plaintiff as to the cost of the materials and labor is competent evidence of the value, and that the other question was not raised by defendants at the trial, with whom RICH, J.. concurs.  