
    KASSNER v. EDSALL.
    (Supreme Court, Appellate Term.
    February 28, 1905.)
    Work and Labor—Damages—Evidence—Judgment.
    Where, in an action for work and labor, the highest estimate of the value was testified to by plaintiff, who gave a detailed estimate amounting to $164, a judgment in favor of plaintiff for $186 was erroneous.
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Abraham Kassner against Edward M. Edsall. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.
    Argued before SCOTT, GIEGERICH, and McCALL, JJ.
    Herman N. Hansen, for appellant.
    William J. A. Caffrey, for respondent.
   PER CURIAM.

The plaintiff certainly outswore defendant so far as concerns the number of witnesses, but we are by no means convinced that the weight of credible evidence did not rest with defendant. The claim against this defendant bears many indications' that it was an afterthought, conceived only when Me Walters refused to pay the same claim, when presented to him under the guise of extra work. We are reluctant to reverse a judgment of the Municipal Court merely because it seems to us to be against the weight of evidence, and should hesitate to reverse this judgment upon that ground alone.

A more serious difficulty is that we are unable to find any support in the evidence for the amount of damages ($186) for which the judgment was rendered. The plaintiff and his witnesses gave several estimates of the value of the work done and material furnished, the highest being that of the plaintiff himself, who gave a detailed estimate amounting to $164, the others being respectively $146 and $140. If we were entirely satisfied with the evidence to sustain plaintiff’s claim for something,- we might properly content ourselves with reducing the judgment, but, as it is, we deem it best that the whole case should be retried.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.  