Opinion
January, 1912.
It was incumbent upon the plaintiff to establish that his work was done under a contract with the defendant that provided for a payment of $35 for each article. The burden was not upon the defendant to establish that the arrangement between the parties contemplated a payment of but $25 therefor. ( Rose v. Wells, 36 App. Div. 593. ) We think that the preponderance of evidence upon that issue is against the plaintiff, not only in view of the testimony of the defendant's witnesses, but also upon consideration of the plaintiff's testimony, which indicates performance at the rate of $25 with the hope but not upon the reliance that the larger sum would ultimately be paid. His testimony also tends to indicate a waiver of the agreement which he testifies he made originally with McLaughlin. The exception which is made the subject of point V of appellant's brief was well taken and would be fatal if the quotation therein from the charge was exact, but in the record, which is binding upon us, the word "must," quoted by the learned counsel for the appellant, appears as "may." There is not the slightest idea of imputing to counsel an intentional misquotation, for there is no ground for it whatever; quite the contrary. We do not decide that the case presented was not for the jury, but from dissatisfaction with the verdict upon this record we reverse the judgment and order, and order a new trial, costs to abide the event. Jenks, P.J., Carr and Woodward, JJ., concurred; Thomas, J., concurred in result; Burr, J., voted to reverse for errors in the charge. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.