Drennan v. Burns

This action was brought on an open account to recover the sum of $978.44 for services rendered and materials furnished. The defendant made various payments to the plaintiff for work done, and alleged that full payment had been made. Plaintiff’s bill of particulars consisted of eleven pages of a variety of items. The only testimony offered in support of the claim was that of the plaintiff. It was of course incumbent upon him, in an account for plumbing work and supplies furnished in connection therewith — running from the 14th day of November, 1906, to the • 16th day of March, 1911 — to prove by competent evidence the furnishing of the materials, the performance of the labor, and that the prices charged were fair and reasonable. The court permitted the plaintiff to complete his proof by the admission of the bill of particulars, and in this language: “ The Court: Have you looked over that bill of particulars recently? The witness: I have and verified it. The Court: Are you able to state now' here, having explained it, can you swear as to each item having been either furnished as a material or put in as labor for the plant on this job? Look through it and see, and if you can, I will admit the entire account in evidence as a summary of his evidence. Plaintiff’s counsel: For that purpose I offer the bill of particulars in evidence. The Court: Yes, I will receive it.”

It will be observed that this question was not even *19answered by the witness. The plaintiff had endeavored to prove the items from his own ledger, but it appeared that it had not been written up from the witness’s own knowledge. The books were written up in part by the wife of the plaintiff and in part by a bookkeeper. There was no evidence that they kept them correctly or that the entries were in accordance with the data furnished by the plaintiff. City of New York v. Second Ave. R. R. Co., 102 N. Y. 572; Cobb v. Wells, 124 id. 77. The bill of particulars was prepared by the bookkeeper, who was not produced to show that it was a true copy of the books. As a matter of fact, for much of the work done, the plaintiff accepted slips from his workmen, and there was no proof to show that these slips were true. Moreover, there was no evidence to show that the charges were fair and reasonable. It may well be that the plaintiff has a cause of action, but he should be held to a reasonable degree of proof. No proper foundation, in my opinion, was laid over objection for the admission of the bill of particulars in evidence.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.