McCollum v. Seward

In an action for work and labor, after plaintiff had testified as to the character of the services rendered, he called a witness, who was asked: “What were his (plaintiff's) services, as he describes them, worth per month ? ” This was objected to upon the ground that it was not competent for witness to give an opinion on plaintiff’s statements. The objection was overruled. Held, no error ; that the question did not call upon the witness to determine the truth of plaintiff’s evidence, but was simply, what were his services worth, assuming they were rendered as described, leaving the jury to determine that question, In an action upon an unliquidated demand, the allowance of interest from the time of the commencement of the action is proper.

Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff, entered upon the report of a referee. This action was to recover for work, labor and services. It was brought originally by plaintiff’s intestate. "Upon the trial, after the then plaintiff had testified as to the character of the services he performed, the average length of time he was employed each day, etc., one Robinson was called as a witness, who, having testified that he heard the testimony of plaintiff, was asked: “What were his services, as he describes them, worth a month taking the whole year round?” This was objected to by defendants’ counsel, on the ground that “ it was not competent for witness to give an opinion on plaintiff’s statement.” The objection was overruled, and plaintiff’s counsel excepted. The referee allowed interest on the balance found by him unpaid from the time of the commencement of the action, to which defendants’ counsel duly excepted. The referee erred in overruling defendant’s objection to the testimony of the witness Robinson as to the worth of plaintiff’s services. (People v. Lake, 12N. Y., 358; Dexter v. Hall, 15 Wall., 9; 1 Greenl. Ev., § 440; Woodbury v. Obar, 7 Gray, 467, 471; Scott v. Lillenthal, 9 Bosw., 224, 229; Ehle v. Chit. Bk., 24 N. Y., 548; Bap. Ch. v. Bklyn., etc., 28 id., 153 ; Rich v. Jackway, 18 Barb., 357; Crounse v. Fitch, 23 How. Pr., 354, 355; 14 Abb. Pr., 347; Newell v. Doty, 33 N. Y., 94; Van Vechten v. Hopkins, 5 J. R., 211; Maynard v. Beardsley, 7 Wend., 560; Gibson v. Williams, 4 id., 320; Weber v. Kingsland, 8 Bosw., 416, 438, 441; Richardson v. Mosier, 53 Barb., 602, 605; People v. Haynes, 55 id., 456 ; People v. Cole, 43 N. Y., 512; Worrall v. Parmelee, 1 N. Y., 519; Baird v. Gillett, 47 id., 186 ; Williams v. Fitch, 18 id., 546 ; Starbird v. Barrens, 43 id., 200; Osgood v. Manhattan Co., 3 Cow., 612.) It was error to allow interest from the commencement of the action. (Rens. Glass Factory v. Reid, 5 Cow., 588; 603; Holmes v. Donihugh, 17 Barb., 454; Robinson v. Stewart, 10 N. Y., 190.) The testimony of Robinson as to the value of plaintiff’s services was properly received. (1 Phil. Ev., 290 ; 1 Greenl. Ev., § 440; 2 Park. Cr., 49, 134,135; 3 id., 272; 7 Metc., 500; McNaghten's Case, 10 Cl. & F., 200; Crary v. Sprague, 12 Wend., 41, 404; Joy v. Hopkins, 5 Den., 84; Lincoln v. Sar. Co., 23 Wend., 433; Brill v. Flagler, id., 354; Clark v. Baird, 5 Seld., 196; Robertson v. Knapp, 35 N. Y., 92; 45 id., 125.) Interest was properly allowed by the referee. (Graham v. (Chrystal, 1 Abb. Pr. [N. S.], 121; Adams v. Fort Plain Bk., 36 N. Y., 255; Mygatt v. Wilcox, 45 id., 306; Rawson v. Grow, 4 E. D. S., 18; Feeter v. Heath, 11 Wend., 478, 484; McCormack v. Penn. Cen., etc., 49 N. Y., 304; Parrott v. N. Y. Ice Co., 46 id., 361; 43 id., 244; 1 Abb. [N. S.], 121, 244; affirmed, 2 Keyes, 21; 4 E. D. S., 18; McMahon v. N. Y. C. R. R. Co., 20 N. Y., 463.)