H. L. Trubenbach, Respondent, v. John W. Otten, Appellant

H. L. Trubenbach, Respondent, v. John W. Otten, Appellant. Contract — building contract — value of services. Appeal by the defendant from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 26th day of May, 1909, affirming a judgment of a Justice’s Court, and also from an order of said County Court, entered on the 6th day of May, 1909, affirming said judgment of the Justice’s Court. [MAJORITY — Thomas, J.:] Thomas, J.: It is considered that the merits favor the plaintiff, but the record does not present evidence whereon the damages c"an be ascertained. The plaintiff did not show the value of his "services, as he should if he relies for recovery upon quantum meruit. He should have been allowed to show the cost of the building, whereon, at the agreed percentage, such value could have been ascertained. It is preferable, if practicable, to prove'the actual cost of the building; otherwise the estimated cost may be shown. If an estimate of the cost was-given by the defendant to the plaintiff, it is admissible. If there was any agreement for a specific sum for doing any part of the work, that may be shown. The record should contain an account of the indebtedness and the credits thereon. The judgment and order of the County Court of Nassau county should be reversed and a new trial in the Justice’s Court ordered, costs to abide the event. Jenks, Burr, Rich and Carr, JJ., concurred. Judgment and order of the County Court of Nassau county reversed and new trial in the Justice’s Court ordered' costs to abide the event.