Gennaro Ventresca and John Norton, Respondents, v. Clinton Beckwith, Appellant

Gennaro Ventresca and John Norton, Respondents, v. Clinton Beckwith, Appellant. Second Department, March 23, 1906. Evidence—when error to strike out testimony of architect as to measurements made by him, although he has not fully qualified as an expert — judgment warranted hy other evidence affirmed on appeal from judgment. When, in an action for damages for the breach of a "building c.ontritct 'by the defendant, the plaintiff has introduced the evidence of an architect who had measured the uncompleted wall as built by the’plaintiff,, and without objection . from the defendant has testified to its value, it is not error for the court to refuse to strike out ali bis testimony because on cross-examination the witness did hot; appear to have been familiar with double-faced walls as built hy the ' plaintiff. The evidence as to the measurements was admissible in any event. As on' an appeal from a judgment only questions of law are presented, when there is. other evidence sufficient to justify the verdict for the plaintiff independent of the evidence of said witness, a judgment for the plaintiff inüst be ■ affirmed. ■ Appeal by.the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Putnam on the 13th day of May, 1905, upon the verdict of a jury rendered after a trial at the Putnam Trial Term. " William H. Weeks, for the appellant. Abram J. Miller, for the respondents. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiffs bring this action to recover damages for a breach of contract, and have been awarded a verdict by the jury, and the only question presented upon this appeal from the judgment is. the refusal of the court to grant a motion to' strike out the testimony of a witness called to prove the relative value of the work performed under the contract, the defendant having-prevented the plaintiffs from completing the'work, as . the jury has found upon sufficient evidence. ’ • The plaintiffs had a-contract with the defendant for the construetion of certain stone wall, for, which the defendant was under contract with the city of New York. Some portion of this wall, had been finished; other portions were at various stages of completion. The contract provided that the plaintiffs should be paid nine dollars and twenty-five cents per rod for the completed wall, and plaintiffs called one Waite, an architect, to prove the amount of work which had been done under the contract at the time the defendant prevented further work. Mr. Waite testified that he was familiar with this general kind of wall; that he had constructed walls of the same general character and knew the value of the work, etc., and then testified to the measurements which he had made of the completed work and of the uncompleted portions, the stone which had been drawn upon the ground, etc. On his cross-examination defendant’s counsel asked him some questions the answers to which might be construed into an admission that he was not familiar with walls of exactly the same character. .Then he was asked a variety of questions as to the details of the wall, thé cost, etc., and then a motion was made to strike out all of his testimony, on the ground that the witness was not shown to be-an expert. Upon further questioning by the court it appeared that the witness was familiar with work of the same kind, except that he had never constructed a double-faced wall, and that the witness was called for the purpose of showing the proportion of the work which had been performed, the estimates as to values being based upon the contract price of nine dol-, lars and twenty-five cents per rod, and the court denied the motion to strike out the testimony. Obviously the witness had shown himself competent at least to testify to the measurements which he had made, and having testified without objection as to the relative .values of the different portions it would seem'that the court was entirely justified in denying the motion which was before it, which was to strike out all of the testimony of the witness. This would be true even though the witness had shown no qualifications as an expert. He made measurements and he could tell of these, and having told of them without objection as to his estimates, the plaintiffs were entitled to the benefit of the evidence. On the merits there is evidence sufficient to justify the verdict of the jury entirely independent of this witness, and as only questions of law are presented by an appeal from the judgment (Alden v. Knights of Maccabees, 178 N. Y. 535), and it was 'clearly not error for the court to deny the motion as made by the appellant, the judgment must be affirmed, with costs. Jenks, Hooker and Rich, JJ., concurred. Judgment affirmed, with costs.