Behr v. Menendez — 28 N.Y.S. 526

Majority

p. 526

BEHR et al. v. MENENDEZ.

(City Court of New York, General Term.

April 23, 1894.)

Headnote

Appeal from special term.

Action by Henry Behr and another, as receivers, against Jose M. Menendez. From an order denying a motion to vacate the judgment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before MCCARTHY and CONLAN, JJ.

Roger M. Sherman, for appellant.

Stickney, Spencer & Ordway, for respondents.

This is an appeal from an order denying a motion to vacate and set aside a judgment entered herein in favor of plaintiffs, on the ground that the same is irregular in that the issues arising on an alleged counterclaim were not tried or disposed of according to law. The judgment was entered on a verdict directed by the court.

We have passed on this question in our opinion at this general term (28. N. Y. Supp. 525) on the appeal from the judgment. At most, the contention set up by the defendant could have gone only to a reduction of plaintiffs’ claim as conceded by the defendant’s answer. The trial justice, having ruled out the evidence offered to prove defendant’s counterclaim, passed on the issues presented, and thus there was no offset or deduction to be made, and the plaintiff became entitled to a verdict for the full amount. The proper course left, then, for defendant was by appeal from the judgment, and not by the method herd adopted. The order should therefore be affirmed, with costs. ,