(14 Misc. Rep. 040.)

#### HART v. McSWEGAN et al.

(Common Pleas of New York City and County,

General Term.

December 2, 1895.)

Trial—Motion to Strike out Testimony.

A refusal to strike out evidence, on the ground that it is hearsay, is not error, where the informant of the witness afterwards verified the fact, and the court was not requested to instruct the jury to disregard the evidence.

Appeal from city court, general term.

Action by Charles F. Hart against Frank McSwegan and another. From a judgment of the city court (34 N. Y. Supp. 1140) affirming the judgment entered on a verdict in favor of plaintiff, defendants appeal.

Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOB, JJ.

John Sidney Davenport, for appellants.

Ernest Hall, for respondent.

PRYOR, J.

In this action, for the value of labor and material, the controversy was upon the question whether the plaintiff could charge New York prices for work in Elizabethport, N. J., and for the expense of carrying and boarding his workmen in Elizabethport. The solution of the problem depended upon the mutual understanding of the parties, and this again, upon the circumstances of their negotiation. To the knowledge of defendant, plaintiff’s shop and men were in New York, yet he employed plaintiff to do the work in Elizabethport. It is hardly conceivable that he expected plaintiff to do the work for a less price than he got in New York, or to transport his men and support them at his own expense. This expense was a necessary element in the value of the work. In elucidating the understanding of the parties upon the point, the custom of the business was a pertinent and significant fact. But, indeed, the defendant had notice, in the estimates furnished him, that he would be charged for the carriage and subsistence of the men; and, with this knowledge, he was content to engage the plaintiff to perform the work upon terms to be implied from the circumstances of the employment. Nay more; the estimate gave the cost of the work as a greater sum than was actually charged,—excluding extras,—and still defendant ordered the work. How now can he object to the amount? The value of the work was submitted to the determination of the jury, and, after affirmance by the general term of the court below, their conclusion, upon sufficient proof, is obligatory with us.

*12Evidence of custom was not introduced to establish an express •contract, but only to show a circumstance relevant to a term of the implied agreement, namely, the price defendant was to pay for the work. For the same purpose the parley between the parties and the estimates were competent proof. The exceptions to the admission of evidence are either founded on no specific objection, or else are to proof manifestly competent upon the propriety of the charge for the work. If it was error to exclude evidence of wages in Elizabethport, the error was obviated by subsequent reception of the proof. The reason for the ruling could not be a ground of exception. On cross-examination, defendant drew from a witness a fact which he stated upon hearsay, whereupon defendant moved to strike out the evidence. The informant of the witness afterwards verified the fact. The court was not requested to instruct the jury to disregard the evidence. The refusal to strike out was not error. Platner v. Platner, 78 N. Y. 90, 101.

The only available exception to the charge is “to that part which says, ‘If there was an agreement between the plaintiff and Mr. MeSwegan that he might take New York laborers down there, and charge fifty cents an hour, he can charge it for New York laborers,’ ” to which the answer is that we discover no such proposition in the charge.

Judgment and order affirmed, with costs. All concur.