The plaintiff has recovered a judgment on the verdict of a jury against the defendant in the sum of $4,500 plus *222interest and costs in accordance with his claim for $7,000 as the reasonable value of services rendered as an artist in altering a portrait of the defendant. The defendant contested the plaintiff’s claim upon the ground that the plaintiff had undertaken to paint the defendant’s portrait to her satisfaction for the sum of $10,000, which he had received; that the defendant was not satisfied with the portrait as originally painted by the plaintiff and the parties then agreed that the plaintiff should alter the portrait without additional charge, except upon the payment of certain incidental expenses. The plaintiff on his part claimed that the contract to paint the portrait was a closed transaction and that he was entitled to the reasonable value of his services in making the alteration and the court at Trial Term so charged. The defendant, however, was entitled to have submitted to the jury her version of the oral contract, namely, whether the agreement was as claimed by her and not as claimed by the plaintiff.
It follows that because this issue of fact was taken from the jury the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.