
    SHAPIRO v. THOMAS B. LEAHY BLDG. CO.
    (Supreme Court, Appellate Term.
    November 24, 1908.)
    1. Appeal and Ebbob (§ 1140*)—Review—Excessive Vebdict.
    Where, In an action for a balance due on contracts for work and ma- . terials, the documentary evidence conclusively shows that the balance due is but a certain amount, a verdict for a greater amount is unwarranted, and will be set aside, unless plaintiff stipulates to reduce the same.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4464; Dec. Dig. § 1140.*]
    2. Appeal and Ebbob (§ 1011*) — Review — Questions of Fact-Finding on
    Conflicting Evidence.
    Where, in an action for extra work performed and materials furnished, there was a conflict as to whom credit was extended, the decision of the trial justice will not be disturbed.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*]
    Appeal from Municipal Court, Borough of Manhattan, Eirst District.
    •For other cases see same topic & $ number In Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      Action by Adolph Shapiro against the Thomas B. Leahy Building Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the verdict to a certain amount, in which event the judgment, as so modified, to be affirmed.
    Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
    Thomas P. De Graffenried, for appellant.
    Jacob Levy, for respondent.
   PER CURIAM.

This action was brought to recover the sum of $402.27 alleged to be a balance due for work performed and materials furnished. The plaintiff’s claim is based upon three contracts involving the amounts of $1,400, $1,300, and $175, respectively, and extra work performed and materials furnished of the value of $87, making the total cost price $2,962, upon which the plaintiff alleges only $2,559.73 has been paid, leaving a balance due of $402.27. The defendant resists this claim on the ground of payment as to the work performed under the contracts, and, as to the extra work, it claims that the work was not performed at its request.

The documentary evidence introduced conclusively shows that the plaintiff has been paid for the work performed under the three contracts with the exception of $18.47. As to the claim for the extra work performed, at the agreed price of $87, there was a conflict as to whom the credit was extended, and the decision of the trial justice as to this item should not be disturbed.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict rendered in his favor to $105.47 and costs, in which event the judgment, as so modified, will be affirmed without costs of this appeal to either party.  