Marggraf v. McLean

Eitzsimocts, Ck. J. The plaintiff was bound to prove that the testator engaged him to perform the services sued for, or that they were performed with his knowledge or consent. 6 App. Div. 535. No attempt was made to offer such testimony. The defendant’s testator was, so far as the evidence in this case shows, apparently entirely ignorant of the fact that the said services were rendered, or material furnished. Therefore, plaintiff has. no legal right to ask compensation therefor. The verdict is,, therefore, against the law and the evidence and must be reversed. It is so directed and a new trial is ordered, with costs to appellant, Sohtjohmah, J., concurs. Judgment reversed, and new trial ordered, with costs to appellant.