Capobianco v. Thilemann

Per Curiam.

.The plaintiff sued for labor performed at the request of the defendant. According to his evidence, he was directed to do such work as he was instructed to perform by the inspector on the work. A dispute arising as to the extent of the services rendered, the evidence given on behalf of the plaintiff justified the conclusion reached by the court below.

Lawrence v. Mayor, 29 App. Div. 298, has no application. That was a case between a contractor and the city, under a contract providing that the estimate of the engineer as to the amount of work performed would be conclusive between the parties. There was a similar contract between the defendant in this case and the city of Hew York. The plaintiff, however, was not a party to it, and was not bound by its provisions in the absence of an express agreement on his part. The proofs in this case do not establish such an agreement. As to the defense of non-joinder of necessary parties, there was not 'sufficient evidence to support it.

The judgment was rendered on conflicting testimony, and as there is no merit in the exceptions, it should not be disturbed.

Present: Beekmait, P. J., G-iegebioh and O’Gobmait, JJ.

Judgment affirmed, with costs.