
    Ida M. Newcombe, as Executrix, Respondent, v. Samuel P. Hyman, Appellant.
    (City Court of New York
    General Term,
    November, 1895.)
    Eiror in'the admission of books of account, where no proper foundation was Bid, is harmless where the. defendant admitted the rendition-of the . services sued for and the court charged that the. books were not evidence of nonpayment. - , •
    Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial. -
    
      Bjostem Brother's, for appellant. • ,
    ■■ Booraem, Hamilton, Beckett <& Bcmsom, for respondent:
   Oonlan, J.

Appeal from a judgment, entered on the verdict of a jury, and from an order denying- a motion for a new-trial.

. The plaintiff brings1 this action as executrix of the will of her deceased husband, Richard S. Eewcombe, who, prior and down1 to .the. time of his death, which occurred on the 21st day of July, 1891, was a1 member of the law. firm of'Donohue,. Eewcombe & Oardozo, to. recover- for professional services rendered by- her husband while a member of said firm, and which claim.was duly assigned to her as such executrix.

The answer, practically admits the services, but denies that1 there is anything due and owing - on - account thereof,- and alleges that the defendant paid plaintiff’s testator-$300, 'which ■ was in1 full of the account in suit.

The plaintiff introduced in evidence, under defendant’s ' objection;, the books kept by the. firm of which. plaintiff’s - testator was a- member, showing the services rendered and the amount charged. - ' ’ ' ,

Defendant urges error in the admission of the books on the ground that a proper foundation had not been laid for the evidence; the error, if any, was cured. by defendant’s testimony where he admits the rendition of the services; as-charged.

The amount or value of the services was never seriously, disputed by the defendant, as. the evidence of his partner,. Mr. Maass, shows.

The question litigated was one of payment, and, as the-court charged that the books were not evidence, of nonpayment, they became harmless in any aspect of the case.

The court submitted the questions of value of the services; and payment to the jury under a charge as favorable to the defendant as could be expected, and we do not feel waiv rant.ed in disturbing that verdict. 1

Judgment affirmed, with costs.

Fitzsimons and McCarthy, JJ., concur. . •

Judgment affirmed, with, costs. ■  