Majority
p. 857SCHENCK v. FISCHER. (Supreme Court, Appellate ■ Term, First Department. November 8, 1912.) Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
Headnote
Judgment (§ 84*)—Admission of Debt.Where defendant admitted liability on a cause of action for $30.05, and set up a counterclaim, which was dismissed, plaintiff was entitled to judgment for that amount, and a judgment for defendant was erroneous.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 137, 139, 140; Dec. Dig. § 84.*]
«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Elliott Schenck against Louis Eischer. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Guernsey Price, of New York City, for appellant.
Charles Eischer, of New York City, for respondent.
Plaintiff sued on five causes of action arising out of a contract. The total amount claimed was over $200. The third cause of action, amounting to $30.05, was expressly admitted by defendant. Defendant set up a counterclaim of $36.
From the record it appears that the counterclaim was dismissed, whereupon plaintiff admittedly became entitled to a judgment for $30.05; yet judgment for the defendant was rendered in the sum of $22.31, consisting of $2.31 “fees” and $20 “extra fees.”
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.