Pichel v. Pichel — 58 N.Y.S. 335

Majority

p. 335

PICHEL v. PICHEL et al.

(Supreme Court, Appellate Term.

May 24, 1899.)

Headnote

Appeal—Defective Judgment—Harmless Error.

A municipal court justice found that defendant had established a counterclaim which exceeded the amount sought to be recovered by plaintiff, but decided that, “as plaintiff was a poor man, the court would not give an affirmative judgment,” and ordered judgment for defendant on the ground that his counterclaim had been established to the amount of plaintiff’s claim. Held that, as there was sufficient evidence to support the counterclaim, plaintiff could not complain of the judgment.

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

Action by Isaac Pichel against Adolph Pichel and smother. From a judgment in favor of .defendants, plaintiff appeals.

Affirmed.

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

Carl L. Schurz, for appellant.

G-reenstein & Sobel, for respondents.

In their answer to the oral plea of the plaintiff for “money loaned,” the defendants set up counterclaims aggregating more than the sum claimed by the plaintiff. The learned justice reached the conclusion on the evidence that the counterclaims of the defendants were established, and vouchsafed in his opinion the unusual-explanation:

“But, as the plaintiff is poor, the court would not give an affirmative judgment, but gave judgment for the defendant on the ground that his counterclaim had been established to the extent of the plaintiff’s claim.”

Evidence was adduced in support of the allegations of defendants which justified a finding in their favor. If they be not aggrieved that the judgment was not for the full amount to which the justice found they were entitled, the plaintiff may not complain. The judgment should be affirmed.

Judgment affirmed, with costs to respondents. All concur.