Kerbel v. Wasserman

This action was brought to recover for work, labor, and services performed at defendant’s request. Owing to the fact that this suit was not brought until some 10 months after the work was done, and that plaintiff kept no books of account, the trial involved passing upon a great number of items and much detail. It cannot be said that plaintiff did not sustain the burden of proof; but it seems that the learned judge overlooked an item of $30, which the testimony of the defendant, accompanied by a check in evidence, showed plainly had been paid, and concerning which plaintiff’s testimony is substantially an admission of such payment. His alleged explanation, which succeeded such admission, is unintelligible. This item should therefore be deducted, and the amount of the judgment reduced to $54.55, with appropriate costs, and, as thus modified, the judgment is affirmed, with $10 costs to the appellant, to be set off against the judgment. All concur.