Simon v. Silber — 145 N.Y.S. 87

Majority

p. 87

SIMON v. SILBER.

(Supreme Court, Appellate Term, First Department.

December 30, 1913.)

Headnote

Judgment (§ 250*)—Belief to Defendant—Pleading Counterclaim—Necessity. In an action for the price of postal cards, proof that plaintiff violated an agreement not to deliver other cards of a like character to any person other than defendant will not warrant a judgment for defendant, where no counterclaim was pleaded or proven.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.*]

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

Action by Clarence F. Simon against Isaac Silber; first name, “Isaac,” being fictitious, defendant’s real first name being unknown to plaintiff. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Argued December term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Leon Kauffman, of New York City, for appellant.

Robert H. Charlton, of Brooklyn, for respondent.

■ The judgment rendered in favor of the defendant is without any basis in law. The plaintiff sold and delivered goods to the defendant and sues for the value thereof. The goods sold were postal cards. The court below, in the judgment rendered, has relieved the defendant of the obligation to pay for the cards purchased, upon the ground that the plaintiff agreed not to deliver other cards of a like character to any person other than the defendant, and that the plaintiff violated this agreement. No counterclaim was pleaded or proved.

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