Gasparowicz v. Oshinsky — 146 N.Y.S. 1080

Majority

p. 1080

GASPAROWICZ v. OSHINSKY.

(Supreme Court, Appellate Term, First Department.

April 14, 1914.)

Headnote

Set-Off and Counterclaim: (§ 57*)—Judgment fob Plaintiff.

In an action for wages, where defendant expressly admitted the claim, but interposed a counterclaim for a less amount, plaintiff was, át all events, entitled to a judgment for the difference between her claim and the counterclaim, and a dismissal of the complaint was erroneous.

[Ed. Note.—For other cases, see Set-Off and Counterclaim, • Cent. Dig. § 128; Dec. Dig. § 57.*)

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

Action by Tessie Gasparowicz against Isidor M. Oshinslcy. From a judgment dismissing the complaint without prejudice, plaintiff appeals.

Reversed and remanded.

Argued March term, 1914, before SEABURY, LEHMAN, and BI-JUR, JJ.

Nathan April, of New York City, for appellant.

Charles S. Rosenberg, of New York City, for respondent.

The record of the case shows so irregular a course of practice, both previous to and at the trial, as alone to require a reversal; but, on what may be called the merits, plaintiff sued for $17 wages, which claim defendant expressly admitted and interposed a counterclaim of $12. In any view of the controversy therefore, plaintiff was entitled to a judgment for $5.

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