Plattner v. Weiler — 57 N.Y.S. 98

Majority

p. 98

PLATTNER v. WEILER.

(Supreme Co-urt, Appellate Term.

March 24, 1899.)

Headnote

"Counterclaim—Burden of Proof.

A defendant has the burden of establishing a counterclaim.

Appeal from municipal court, borough of Manhattan, Second district.

Action by Moses Plattner against Frank M. Weiler. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Morris Putnam Stevens, for appellant

JJ. Staassman, for respondent.

This action was brought to recover the sum -of $82.50 for services of the plaintiff, as an advertising agent, in advertising the property of the defendant from September 4, to October 14, 1898. The defense was a general denial and a counterclaim. The plaintiff proved his cause of action on the trial, the defendant interposing no testimony to disprove it. The burden of proof then rested upon the defendant to establish his counterclaim, upon which there was a distinct conflict of testimony. There is nothing appearing in the case from which it can be urged that the court below erred in the exercise of its rights to render judgment in favor of the plaintiff, and therefore the judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.