
    Smith Lydecker, Respondent, v. The Village of Nyack, Appellant.
    
      Absence of a statement that the ease contains all the evidence — one< who contracts with a municipality for a specific sum cannot recover upon a quantum meruit — ■effect of a failure to prevent the execution of an alleged contract.
    
    Although a case upon appeal contains, no certificate that all the evidence ¡is contained in it, yet where the case contains a fact admitted by both parties, of where the evidence is all' one way on a certain question of fact, the court is bound to regard it and is not at liberty to, assume that there was . evidence to the contrary. .
    Where there is.no evidence to support, a verdict a question of law is'raised ¡which' must be decided by the court.
    Where the complaint in .an action alleges, that the plaintiff was employed by the defendant, a village, to remove ashes and garbage at an agreed price, it is erroneous for the court to permit a recovery upon a quantum meruit. .
    It is also erroneous in the court to refuse to charge the Jury, upon the trial of ' such an action, that the fact that the board of trustees ¡of the village failed to prevent the plaintiff from removing garbage does not make the village. liable and is not to be considered by the jury. • ; ■
    Appeal by the defendant; The Village of Ñyack, from a fudgment of the Supreme Court iii favor of the plaintiff, entered in-the-. office of' the clerk of the county of Rockland on the 25th day of September, 1895, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and also from an order entered in said-clerk’s office on the--day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur S. Tompkins, for the appellant.
    
      Irving Brown, for the respondent.
   Pratt, J. :

This is an appeal from a judgment in favor of the plaintiff entered upon a verdict by a jury and from an order denying a motion for a new trial.

The case contains no certificate that all the evidence is contained in the case, and plaintiff insists that the court is precluded from examining the facts on the ground that under the rule the court must assume there was sufficient evidence to sustain the verdict.

The rule has no such effect. There must be some evidence to support the verdict, otherwise it raises a question of law -which the court must decide. Where a case contains a fact admitted by both parties, or where the evidence is all one way on a certain question of fact, the court is bound to regard it, and is not at liberty to assume there was evidence to the contrary.

The complaint contained two causes of action, the first of which was withdrawn • at the trial and will not be noticed. The second cause of action alleged that the defendant on or about May, 1892, entered into a contract by which it agreed to employ the plaintiff to remove ashes and garbage at an agreed price of forty-five dollars per month.

There was not only an utter failure on the part of the plaintiff to prove that there was any such contract, but it was conclusively proved that the defendant refused to enter into a contract with the plaintiff, and in fact that the contract for removing ashes and garbage was awarded to another man who performed the work and received the pay therefor.

The defendant’s motion, therefore, ought to have been granted, because of the failure of the plaintiff to prove his case.

It appeared in evidence that plaintiff collected some ashes and garbage under a claim that he was entitled to do so in fulfillment of a contract with the village, and the judge instructed the jury as follows:

“ The municipal authorities are lia ble under a quantum meruit,” to which counsel for defendant excepted.

This was not a case where a recovery could be had on a quantum meruit, and that ruling was, therefore, error.

A- recovery can be had in a suit on an agreement like this where it appears that a plaintiff has done his duty, but has been prevented by defendant from carrying out his contract, or been unable to carry it out by any cause for which he is not in fault, and the other party has received the benefit of his work, but otherwise he must show a fulfillment of his contract to entitle him to recover.

• This suit was upon a contract, but plaintiff not only failed to ■ prove any contract, but failed to show any performance or excuse for non-performance. .

The defendant’s counsel also requested the court' to charge That the fact that the Board of Trustees failed to stop Lydecker or prevent him from removing garbage does not make the village liable and is not to be considered by the jury,” which was refused.

The village could not well prevent any man from going about and collecting garbage, and a statement that, if they did not prevent it, the village was bound to pay for such volunteer labor was erroneous.

There are other exceptions, but those already noticed require a new trial.

Judgment and order reversed and new trial granted, costs to abide the event.

.All concurred in the result.

' Judgment and order reversed and new trial granted, costs to abide the event.  