Payne v. Hodge

The rule of Smith v. Brady (17 N. Y., 173), which has been so often invoked to deprive the laborer of his hire, we think does not apply to this case. All that the plaintiff agreed to do was to superintend the job; to act instead of the plaintiff in selecting materials, in employing axxd paying mechanics and workmen and in exercising an oversight over the work. For this service he was entitled to a reasonable compensation, and to be x-epaid his disbursements. And his right to recover did not depend on px-oof that the work had been done in conformity with the plans. The plans, no doubt, were intended to govern the manner in which the work was to be done, and any injurious departure from them might evince a want of skill in the plaintiff which would affect the quantum of his compensation, but did not disentitle him to recover what his services wei’e x'easonably worth.

The opinions of experts as to the value of the work done, and the nunxber of days consumed in doing it, we think was properly excluded. The plaintiff’s compensation did not depend on the value of the work when done, and the time requisite to do a pax-ticular work is not a matter of skill or science.

The evidence was clearly sufficient to establish the correctness of the plaintiff’s account. The plaintiff testified that he made the *615entries in accordance with statements made to him by other witnesses, and the latter testified that such statements were true. This is all that the law requires. Such evidence is not necessarily upon hearsay, which is very properly condemned in Gould v. Conway (59 Barb., 361). But the plaintiff testified that he entered the facts as given to him, and' the other witnesses proved that the facts were correctly given to the plaintiff and that he entered them. It can make no difference how the truth of the facts stated in the entry is proved, whether by the one who made the entry or by the .one who gave him the facts which he entered. Nor is an entry incompetent because it is oí a fact not within the personal knowledge of the person who made it; it is enough if it appears that the entry rests upon knowledge and not hearsay, and is proved to have been correctly made.

Evidence of the defendant’s acquiescence was competent to show that the plaintiff faithfully performed his duty, and that the defendant’s complaint on that subject was an afterthought. It was not received to show that any violation of an express contract had been waived, and had no bearing in that direction.

If the views expressed are correct, the other exceptions do not require particular notice.

Upon the merits, the referee seems to have dispensed substantial justice, and his findings of fact and of law are abundantly sustained.

The judgment must be affirmed.

Judgment affirmed, with costs.