O'HEHIR v. MIDDLETOWN-GOSHEN TRACTION CO.

O’HEHIR v. MIDDLETOWN-GOSHEN TRACTION CO. (Supreme Court, General Term, Second Department. December 2, 1895.) Receipt—Effect—Proof of Pinal Settlement. In an action for the price of work and labor done, a receipt in full for , the amount of a bill rendered, not purporting to be in full of all demands, is not conclusive as evidence of a final settlement. Appeal from Orange county court. Action by Patrick P. O’Hehir against the Middletown-Goshen Traction Company to recover for work done by plaintiff for defendant. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed. The bill rendered and the receipt referred to in the opinion are as follows: “Nov. 13th, 1894. “Rockwell Construction Company, to W. P. Merritt, Dr. “To excavating and blasting rock cut at Owen’s, $448.25, as per contract at $1.25 yd., 358% yds., as per Engineer Smith’s measurements.” “Nov. 13th, 1894. “Received from Rockwell Construction Company, rock cut Owens, four hundred forty-eight 2B/ioo dollars, in full of the above account. “$448.25. W. P. Merritt.” Argued before BROWN, P. J., and DYKMAN and PRATT, JJ. O’Neill & Royce (Henry W. Wiggins, of counsel), for appellant. F. V. Sanford, for respondent. [MAJORITY — DYKMAN, J.] DYKMAN, J. This is an appeal by the defendant from a judgment entered in the county court of Orange county upon the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of $522.20 for a balance claimed to be due from the defendant to the plaintiff for services in blasting rock in a cut along the line of the defendant’s road. There was a dispute respecting the amount of work done, and the defense of payment was also set up by the defendant. There was testimony introduced on both sides which tended to show the theories of each party, and the question of fact involved was submitted to the jury by the county judge. The defendant complains of the charge respecting the legal effect of the receipt, but the complaint is without cause. The receipt was for the money called for by the bill upon which it was rendered, and is not a receipt in full. The testimony respecting the circumstances under which it was given is contradictory, and was submitted to the jury. The judge refused to charge that the receipt was evidence of a final settlement, and that was right, in view of the evidence. It must now be assumed that the jury found in favor of the plaintiff upon the question in dispute, and, there being evidence to sufficiently support such a finding, we cannot disturb the verdict upon that ground. We find no errors of law in the case, and the judgment and order denying the motion for a new trial should be affirmed. All concur.