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Barber v. Gray

23 N.Y.S. 313 Court General Term. Decision date 1893-03-17 English

Delivered by FITZSIMONS, J.

Contents

Majority

p. 313
(3 Misc. Rep. 146.)
BARBER et al. v. GRAY.[1]
(City Court of New York,
General Term.
March 17, 1893.)

Headnote

Directing Verdict—Review.
The fact that in rightly directing a verdict for plaintiff the court gave a wrong reason for its action, is immaterial.
Appeal from trial term.
Action by Marshall Barber and others, against Albert Gray. From a judgment on a verdict directed for plaintiffs, defendant appeals.
Affirmed.
Argued before EHRLICH, C. J., and McGOWN and FITZSIMONS, JJ.
Albert Fromme, for appellant.
Billings & Cardoza, for respondents.

The defendant’s answer presented a sufficient cause of counterclaim, but, the same being for unliquidated damages, he was required to submit evidence showing his actual damages, which, if done in the case, because of plaintiffs’ failure to serve a reply, would have entitled the trial justice to instruct the jury to deduct the amount of damages so ascertained from the amount claimed by plaintiffs, and render a verdict for plaintiffs for the balance found due. The failure of defendant to submit or offer to submit testimony of the character mentioned justified the trial justice in directing a verdict, as he did, in plaintiffs’ favor for the amount claimed. The fact that he gave a wrong reason does not affect his action, which, as above shown, was right. Judgment affirmed, with costs. All concur.