#### Charles H. Israels and Julius F. Harder, Doing Business as Israels *&*Harder, Appellants, *v.*Ranald H. Macdonald and Joseph F. Egan, Doing Business as Ranald H. Macdonald *&*Company, Respondents.

Second Department,

December 23, 1907.

Evidence — action by architect for commissions — expert testimony as to cost of building—declarations of plaintiff — appeal — issues not taken at trial.

When an architect is suing to recover tinder a contract which entitled him to a percentage on the cost of a building, expert evidence is inadmissible to show what the cost of such.a building wo.uld be, for the-actual cost is capable of proof.

In such action declarations of the plaintiff made before the plans and specifications were drawn as to the probable cost of the building are inadmissible.

The same is true as to the statement as to cost contained in the plans and specifications filed with the building department.

In such action a nonsuit should be granted on a failure to show the actual cost ' of the building.

When in such action the plaintiff on opposing a motion for a nonsuit claims no right to go to the jury on his right to recover for extra work, the question will not be reviewed upon appeal.

Appeal by the plaintiffs, Charles H. Israels and another, doing business as Israels & Harder, from a judgment of the Supreme Court in favor' of the defendants, entered in the office of the cleric of the county of Queens on the 25th day of March, 1907, upon the dismissal of. the complaint by direction of the court at the close of the plaintiffs’ case upon a trial at the Queens County Trial Term.

The action is to recover a balance for the fees of the plaintiffs as architects. The complaint alleges and the plaintiffs proved a contract that they were to make the plans and specifications of a building about to be erected by the defendants, and be paid 3 per cent, therefor on the cost of the building by the defendants. The building was completed, and the defendants paid the plaintiffs 3 per cent, on what the plaintiffs claimed was the cost, viz., $275,891.45, and also an additional sum for other items, but the plaintiffs claimed that the cost was more, viz., $400,000, and sued for the balance due *64them thereon, and for some small items of extra work, which the defendants claim to have overpaid.

*Theodore T. Baylor,*for the appellants.

*Frank W. Arnold [Frederick C. Gladden*with him on the brief], for the respondents.

Gaynor, J.:

The learned trial Judge did not err in excluding the evidence of experts as to what the "cost of such -a building would be. The actual cost could be proved, and therefore, the case was not one for the opinion, calculation or estimate of experts. No case is cited to the contrary. Nor was the statement of one of the plaintiffs before the plans and specifications were drawn, of the amount the building would or was to cost, evidence of the actual cost; it' was only an estimate or opinion. The same is true of the' statement. as to cost in the plans and specifications filed with the building department. There being no evidence of the actual cost, the case called for a non-suit. •

But the plaintiffs now claim that at all events they were entitled to recover some small items amounting to about $233, whereas the action is for $3,298.97. The claim is very obscure, to say the least.But- it suffices that it was not made below. On the contrary, in ' opposing the motion for a non-suit, counsel for the plaintiffs claimed the right to go to the jury on the evidence of the cost of the building only. If, apart from that, lie claimed that the evidence established a right to recover some other item, he should have pointed it out. -

' The judgment should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.