Opinion
June 18, 1908.
Philip J. Knobloch, for the appellant.
Jos. G. Giambalvo, for the respondents.
There is no dispute that the plaintiffs in this action are architects and that they were employed by the defendant to draw certain plans and specifications for the remodeling of a tenement house owned by the defendant. The plaintiffs claim for the value of the services sixty-five dollars, and the defendant alleges that the price agreed upon was twenty dollars, conditioned upon the acceptance of the plans by the tenement house department. The case would present the usual conflict of evidence, with enough to support the judgment, except for the fact that there is no evidence in the case to support the full amount of the judgment. The plaintiffs claimed fifty dollars as the value of the services. Upon the trial one of the plaintiffs testified that the fair value of the services was fifty dollars. At this point plaintiffs' counsel moved to amend the complaint to allege the value of the services at sixty-five dollars, and the amendment was ordered without objection, but there was no change in the evidence to meet this amended complaint. The result is that while the plaintiffs have fairly established their claim, there is no evidence to support it above the sum of fifty dollars. Under the authority of section 310 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1907, chap. 664) we are authorized to affirm, reverse or modify the judgment, and we are of opinion that the judgment should be reversed, unless the plaintiffs are willing to stipulate that the recovery shall be limited to fifty dollars and costs, in which event it should be affirmed, without costs.
JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, unless within twenty days plaintiffs stipulate that the recovery shall be limited to fifty dollars and costs in the Municipal Court, in which event the judgment is affirmed, without costs.