Majority
p. 566CEBRELLI V. FRANKLIN CONTRACTING CO. (Supreme Court, Appellate Term. December 12, 1907.) Argued before GIEDERSLEEVE, P. J., and GUY and BRUCE, JJ.
Headnote
Courts—Municipal Courts—Set- Oit and Counterclaim—Suit by Assignee.Under Municipal Court Act, Laws 1902, p. 1539, c. 580, § 152, subd. 3, the counterclaim can only be allowed to an amount equalling the demand, in an action on a demand by an assignee thereof.
. Appeal -from Municipal Court, Borough of Manhattan, First District.
Action by Antonio Cebrelli against the Franklin Contracting- Company. From a judgment for defendant for the full amount of his counterclaim, plaintiff appeals. Modified and affirmed.
Sigmund Wechsler, for appellant.
Henry W. Jessup, for respondent.
Upon the trial of this action the complaint was dismissed, and the defendant, who had interposed a counterclaim, was given a judgment against the plaintiff for the full amount of such counterclaim. An examination of the record fully justifies the finding of the court below in its dismissal of the complaint, but as the plaintiff is the assignee of the demand sued upon, no affirmative judgment could
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be given against him. The counterclaim could only be allowed to an amount equalling the plaintifi’s claim. Municipal Court Act, Laws 1902, p. 1539, c. 580, § 152, subd. 3. The judgment rendered should have been for the defendant. Brown v. Coleman, 55 Hun, 501 , 8 N. Y. Supp. 808 .
Judgment modified by directing that the same be rendered for the defendant in the court below, with appropriate costs in that court, and, as modified, affirmed, without costs of this appeal to either party.