Langer v. Murray — 123 N.Y.S. 165

Majority

p. 165

LANGER v. MURRAY.

(Supreme Court, Appellate Term.

May 24, 1910.)

Headnote

Courts (§ 190^[1] )—Municipal * ? Courts—Appeal—Return op Justice.

On appeal from a judgment in the Municipal Court, the return of the trial justice prevails, and a judgment for defendant cannot be sustained on the theory that as to a counterclaim pleaded the justice found for defendant, where the return shows a dismissal of the counterclaim.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 103; Dec. Dig. § 190.*]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Richard Danger against Edward D. Murray. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Argued before SEABURY, LEHMAN, and PAGE, JJ. ■

Bernard Alexander, for appellant.

Boyle, Egan & O’Reilly, for respondent.

The plaintiff has brought an action for goods sold and delivered. According to the return the trial justice rendered— “judgment in favor of the defendant and against the plaintiff, with $30, costs. Counterclaim dismissed, with $15 costs.”

The defendant has admitted the receipt of at least a portion of the goods, and it is not seriously disputed that the plaintiff was entitled to a judgment on his cause of action. The defendant claims, however, that the trial justice found in his favor on the counterclaim, and offsét the judgment on the counterclaim against the sum allowed to plaintiff on his cause of action. We need not consider whether in any event a judgment for defendant on the counterclaim could be sustained, because the return fails to show such a judgment, and we cannot go beyond the return.

Judgment should be reversed, and a new trial granted, with costs ' to appellant to abide the event. All concur.