Myers v. Rosenback — 31 N.Y.S. 993

Majority

p. 993

MYERS v. ROSENBACK.

(City Court of New York, General Term.

January 12, 1895.)

Headnote

Appeal—Harmless Error.

Denying a motion to dismiss a counterclaim does not prejudice plaintiff where the jury finds against defendant on the counterclaim.

Appeal from trial term.

Action by Frederick S. Myers against Moses S. Rosenback. There was a judgment in favor of defendant, and plaintiff appeals.

Affirmed.

Argued before EHRLICH, C. J., and FITZSIMONS, J.

Hamilton R. Squier, for appellant.

Horwitz & Hershfield, for respondent.

The defendant’s answer alleged that he was induced to sign the lease in question by fraudulent representations made by plaintiff. This issue was, in our judgment, clearly established in defendant’s favor by a preponderance of evidence. The fact that the defendant remained in possession of the demised premises until June Gth, under the circumstances, did not make him liable for the dune rent, for the reason given by the general term of this court. See 25 N. Y. Supp. 528 ; also, Wallace v. Lent, 1 Daly, 481 .

The plaintiff suffered no injury because of the denial of his motion to dismiss defendant’s counterclaim. The jury found against the defendant upon said counterclaim. The same thing may be said of the alleged error of the trial justice concerning the admission of evidence to sustain the counterclaim. If there were any errors, evidently, they were harmless, so far as plaintiff was'concerned. After carefully reading the record, we are convinced that the judgment is a just one, and should be affirmed. Judgment affirmed, with costs. All concur.