Opinion
Submitted January 18, 1938 —
Decided May 17, 1938.
1. Plaintiff sued to recover the value of engineering services in rendering an opinion as to the condition of a railroad siding, the only issue being whether there had been performance of the contract by it. Held, that the testimony supported the finding of the trial judge in favor of plaintiff.
2. On the trial of an action brought to recover services in rendering an opinion as to the condition of a railroad siding, defendant sought to introduce testimony by one not a qualified expert as to the condition of the siding, and which testimony was not for the purpose of laying a foundation for later expert testimony. Held, that the trial court properly rejected such testimony.
On appeal from a judgment of the District Court of the First Judicial District of the county of Essex.
Before Justices CASE, DONGES and PORTER.
For the plaintiff-appellee, Solkind L. Levenson ( Jacob L. Bernstein, of counsel).
For the defendant-appellant, Hannoch Lasser ( Herbert J. Hannoch and William S. Myers, of counsel).
The plaintiff sued to recover from the defendant the reasonable value of its engineering services in rendering an opinion as to the condition of a railroad siding. The court, sitting without a jury, found for the plaintiff, from which judgment defendant appeals. An examination of the proofs shows that there was no dispute of the hiring, nor of its purpose, nor of the value of services if rendered, but there was an issue of fact as to whether or not there had been performance of the contract by the plaintiff.
On that question there was testimony which was clearly within the province of the trial judge to weigh, and which, in our opinion, supports his findings.
There remains but the question of the rejection of evidence sought to be introduced on behalf of the defendant which is urged as error. This evidence was an offer to show the condition of the railroad siding. The court rejected this testimony only after it developed that it was not given by a qualified expert, and was not for the purpose of laying a foundation for later expert testimony. We conclude that there was no error in that ruling.
The judgment will be affirmed, with costs.