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Hough v. State

Supreme Court of New York, Appellate Division

June 28, 1911

DAVID L. HOUGH, Appellant,
v.
THE STATE OF NEW YORK, Respondent.

APPEAL by the claimant, David L. Hough, from a judgment of the Court of Claims of the State of New York, entered in the office of the clerk of said court on the 18th day of April, 1910, in favor of the claimant for the sum of $1,350.

COUNSEL

L. Laflin Kellogg and Alfred C. Petté, for the appellant.

Thomas Carmody, Attorney-General [Joseph A. Kellogg and Valentine Taylor of counsel], for the respondent.

Page 719

SMITH, P. J.:

The claimant challenges the judgment for insufficiency. In 1906 the State was in litigation with the Consolidated Gas Company to test the validity of the so-called Eighty-Cent Gas Law. In that litigation the value of the plant and equipment of the Consolidated Gas Company became an important factor. One Mayer had testified in behalf of the Consolidated Gas Company that its plant and equipment was of the value of $16,098,893. The State through its counsel was endeavoring to prove that this estimate was excessive. This claimant was asked to be an expert witness in behalf of the State, and after some negotiations between him and the attorneys representing the State the following letter was written by claimant to the Deputy Attorney-General:

' Oct. 6, 1906.

'Messrs. KIRBY & WOOD,

'Hon. GUSTAVUS T. KIRBY,

'2 Wall St., City of New York:

'DEAR SIR.--As a memorandum of our understanding: I am to serve you as one of the State's expert witnesses in appraisal of the Consolidated Gas Company's plant and properties other than real estate, and be prepared to answer such other questions as my knowledge may permit; on the basis of a retainer of One thousand Dollars ($1,000), and Fifty Dollars ($50) per day for services while engaged upon the work of examining, appraising, consulting and testifying; it being understood that the minimum days to be charged shall be ten (10). In addition to the above, I am to be reimbursed for any expenses to which I may be put. The terms of payment to be $1,000 down, and the remainder at such time as may be convenient; naturally, with the understanding that I may collect as against the State should the Legislature fail to pass the necessary appropriations. Will you kindly deliver to bearer the package of testimony that I am to take with me to-day?

'Very truly yours,

'D. L. HOUGH,

'DLH-R.'

To this letter the following reply was sent:

Page 720

'2 WALL STREET, NEW YORK CITY,

' October 8th, 1906.

'D. S. HOUGH, Esq.,

'32 East 33rd St.,

'New York City:

'DEAR SIR.--In reply to your communication of Oct. 6th, I have to say in behalf of the Attorney-General of the State of New York that the terms and conditions set down therein are in accordance with my understanding and are satisfactory. There is some little formality to be gone through with before the $1,000 is paid down; but as soon as you return I will put the necessary vouchers to be ...


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