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Powers v. McBride

1 N.Y. City Ct. Rep. 481 Court New York Marine Court. Special Term English

Delivered by Me Ad am, J.

Contents

Majority

p. 481
New York Marine Court. Special Term
December, 1882.
LEWIS J. POWERS against ROBERT McBRIDE et al.

Headnote

Offer of judgment.—Credit as to part of claim mnexpired.—Where the defendant pleaded in defense that part of the claim in suit was ■ not due at the time the action was commenced, the credit in respect thereto not having expired, and offered to allow judgment for the balance, which offer was accepted by the plaintiff who entered judgment therefor,—Held, that under such circumstances, the judgment was not a bar to a new action, for the part of the claim which was not due when suit was brought, and that neither an amended^ complaint nor any suggestion upon the record was necessary.
Motion by defendant to correct jndgment by striking an amended complaint from the roll.

—The plaintiff sued defendant to recover $251.11 for goods sold and delivered between July 8, and October 24, 1882. Tb e defendants answered alleging that.the credit as to $157.51 of the goods had riot expired when the action was commenced. This answer must be regarded as true so far as the same may be taken as an admission against the defendants.

The claim was . . • . . . . . $251.11

Amount not due according to defendant’s

answer ....... 157.51

Balance due when action was commenced . $93.60

The defendants offered to allow judgment for this sum ($93.60) with interest. From these admittedfads, it is clear that the acceptance of the offer (without any amended complaint) would have been no bar to a new action for the $157.51 after it became due (See Wilcox

p. 482
v. Lee, 1 Bolt. 355 ; S. C., 1 Abb. Pr. N. S. 250 ; 26 How. Pr. 418 ). As before remarked, the defendants’ answer is conclusive against them, that such credit had not expired. The allegation being true, the plaintiff was bound to accept the offer, and such acceptance under the case cited worked no prejudice to the plaintiff in respect to the portion of the claim as to which the credit had not expired when the action was commenced. Annexing to the judgment-roll an amended cmnplaint claiming $92.90 and interest, did the defendants no harm. The time to amend had not expired when this amendment was made. The only effect of claiming $92.90 in the amended pleading when the offer was for $93.60, is that the plaintiff is barred as to the difference (70 cents), which he loses.

Under the circumstances, the motion to correct the judgment by striking out the amended pleading, will be denied, but without costs.

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