Gerson v. Enterprise Tinware Co. — 157 N.Y.S. 149

Majority

p. 149

GERSON v. ENTERPRISE TINWARE CO., Inc.

(Supreme Court, Appellate Term, First Department.

February 1, 1916.)

Headnote

Courts <3=3189—Municipal Courts—Pleading—Sufficiency.

A set-off need not be pleaded in terms, but it is sufficient if the facts alleged apprise the plaintiff of the issues, under the liberal rules for construction of pleadings in the Municipal Court.

[Ed. Note.—For other eases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <3=3189.]

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

Action by Joseph Gerson against the Enterprise Tinware Company, Incorporated. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ.

Henry W. Fried, of New York City, for appellant.

Harold S. Fleischer, of New York City (Louis Rosenberg, of New York City, of counsel), for respondent.

The plaintiff has recovered a judgment for a breach of an alleged oral agreement to employ him for one year. The defendant contends upon this appeal that the verdict of the jury is entirely contrary to the weight of evidence. The evidence produced by the plaintiff undoubtedly made out a prima facie case, and I do not think that his story is so improbable as to justify the court in interfering with the verdict of the jury based on this evidence, and I find no errors in the rulings of the trial justice which could have affected the decision of the jury.

It appears, however, that the defendant attempted to introduce in evidence as a set-off a judgment for the sum of $69.24 entered upon a dismissal of the complaint in the City Court. The trial judge excluded this evidence on the ground that no set-off was pleaded. The answer does set forth this judgment and that it is still unpaid. While

p. 150

the answer does not denominate the statement of facts as a set-off or counterclaim, it certainly gave notice to the plaintiff of the issues he was expected to meet, and under the liberal rules in regard to the construction of pleadings which prevail in the Municipal Court the defendant was entitled to show the facts pleaded and to have this judgment set off against the plaintiff’s judgment. It follows that the judgment should be modified, by deducting the sum of $69.24, and, as modified, affirmed, without costs on this appeal.

Judgment modified, by reducing the same to the sum of $180.76 damages, with appropriate costs in the court below, and, as thus modified, affirmed, without costs of appeal to either party. All concur.