Hyperlawhypertext legal database Ginsberg v. Borenstein 123 N.Y.S. 809

← Cases

Ginsberg v. Borenstein

123 N.Y.S. 809 Court N.Y. App. Term Decision date 1910-06-24 English

Delivered by BIJUR, J.

Contents

Majority

p. 809
GINSBERG v. BORENSTEIN et al.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Courts (§ 188[1] )—Municipal Courts—Counterclaims.
Under Municipal Court Act (Laws 1902, c. 580) § 151, authorizing a counterclaim based on a cause of action arising out of the transaction sued on, or in an action on a contract based on any other cause of action on contract existing at the commencement of the action, a defendant, sued for money obtained by fraud, who admits that the money was obtained from plaintiff on a statement that it would be applied to a specified purpose, which he had no intention of carrying out at the time may not set up a counterclaim for prior commissions earned.
[Ed. Note.—Por other cases, see Courts, Dec. Dig. § 188.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Samuel Ginsberg against David Borenstein and another. From a judgment for defendants, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
Louis B. Brodsky, for appellant.
Edward E. Hoenig, for respondents.

This action was brought to recover money obtained by fraud. Defendants set up a counterclaim for prior commissions earned. Defendants admitted that the money was obtained from plaintiff on the statement that it would be applied to specific purposes, which defendants further admitted they had no intention of carrying out, even at the time of the receipt of the money. The counterclaim was not one which could be interposed under section 151 of the Municipal Court act (Laws 1902, c. 580).

Judgment reversed, and new trial ordered, with costs tó appellant to abide the event. All concur.