
    OLIN J. STEPHENS, Inc., v. W. E. SMITH, Inc.
    (Supreme Court, Appellate Term.
    January 21, 1910.)
    Master and Servant (§ 80) — Action for Services — Sufficiency of Evidence.
    In an action for services, evidence held insufficient to support a verdict for defendant.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 118; Dec. Dig. § 80.]
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by Olin J. Stephens, Incorporated, against W. E. Smith, Incorporated!. Judgment for defendant, and plaintiff appeals.
    Reversed, and new trial granted.
    Argued before GIEGERICH, DAYTON, and LEHMAN, JJ.
    William C. Relyea, for appellant.
    Paul M. Pelletreau (David J. Wagner, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   LEHMAN, J.

The plaintiff sties upon a claim for services rendered by its assignor to the defendant for four weeks from September 5 to October 4, 1908, for which the defendant agreed to pay at the rate of $30 per week and disbursements.

The evidence of plaintiff’s assignor as to his services was very vague, and might well have been disregarded, and the defendant’s story believed, by the trial justice; but even according to the defendant’s story the plaintiff was entitled to a judgment of $20. There is apparently no dispute that plaintiff’s assignor worked regularly till September 19th and was paid regularly till September 4th, and on September 21st he was paid, according to defendant, “$40 on account of the last two weeks.” He is therefore entitled to be paid at least the $20 still due for these weeks, unless the defendant can establish a defense to the entire claim.

The trial justice, upon the trial, excluded all evidence intended to establish the defense pleaded. Even if this exclusion was erroneous, the judgment cannot be sustained, because there is nothing in the record that would show that the defendant, could establish the defense by competent evidence.

Judgment should be reversed, and a new trial granted, but without costs of this appeal. All concur.  