Rothfeld v. Lintz — 36 Misc. 220

Majority

p. 220

Isaac Rothfeld, Appellant, v. Harris Lintz et al., Respondents.

(Supreme Court, Appellate Term,

October, 1901.)

Headnote

Municipal Court of the city of New York — Reply to counterclaim unnecessary.

Where, in an action in the Municipal Court of the city of New York, a plaintiff offers a judgment, recovered by him against the defendants in another action, as a set-off to their counterclaim, the judgment should not be excluded merely because it was not pleaded and this because no reply to a counterclaim is required in said court.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendants.

A. B. Schleimer, for appellant.

M. D. Steuer, for respondents.

The plaintiff sues for $450 rent. The defendants admit they owe $300 as rent, but deny the additional cláim for $150 and set up a counterclaim for $600, money deposited with the plaintiff as security for the rent. The justice found that the defendants owed the plaintiff $300, but not the additional $150, and that the defendants were entitled to a return of' the $600 deposited with -the plaintiff. He, therefore, gave judgment for the defendants in the sum of $300. The plaintiff appeals.' On the trial the plaintiff attempted to introduce a judgment, recovered in another action, by the plaintiff against the defendants, as' a set-off against the defendants’ counterclaim. It was ruled out on the sole ground, as appears from the opinion of the justice, annexed to the record, that it -had not been pleaded.

p. 221

This ground was untenable as no reply is needed to a counterclaim in the Municipal Court. Kuhn v. Knife Co., 9 Misc. Rep. 54 ; Clinchy v. Apgar, 16 id. 374. If the judgment was bogus, or if it did not constitute a proper set-off, neither of which objections appears from the record, the defendants should have stated those grounds in opposition to the admission in evidence of the judgment, but the latter should not have been excluded on the ground given for its exclusion.

Judgment reversed and new trial ordered, with costs to abide; the event.

Freedman, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to abide event.

Cases cited

Kuhn v. American Automatic Knife & Novelty Co. 9 Misc. Rep. 54 N.Y.C.P. 1894-06-04 p. 221