Hyperlawhypertext legal database Majansky v. Lipman 67 N.Y.S. 84

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Majansky v. Lipman

67 N.Y.S. 84 Court N.Y. App. Term Decision date 1900-11-27 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 84
MAJANSKY v. LIPMAN et al.
(Supreme Court, Appellate Term.
November 27, 1900.)

Headnote

Pleadings—Amendment.
Where an action is brought in the municipal court for services, and defendant answers that plaintiff left his employ before the expiration of the time for which she "was employed, such defendant may amend his answer, and plead payment.
Appeal from municipal court, borough of Manhattan.
Action by Carolina Majansky against Hyman Lipman and another. From a judgment in favor of the defendant's, plaintiff appeals.
Affirmed.
Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.
Jacob Friedman, for appellant.
Simon O. Pollock, for respondents.

This action is for services performed by the plaintiff as a domestic servant. The defense was that the plaintiff left the defendant’s employ before the expiration of the month for which she was employed, and the justice decided the issues in favor of the defendant. We think that this determination is amply supported by the evidence, and the applicant’s contention that the judgment is against the weight of the evidence cannot be viewed as "well founded.

The justice had the power to permit an amendment of the answer setting up the plea of payment (Milch v. Insurance Co., 13 Misc. Rep. 231 , 34 N. Y. Supp. 15 ; Thedford v. Read, 28 Misc. Rep. 563 , 59 N. Y. Supp. 537 ); but, in any event, the amendment did not affect the result, since the issues were determined upon a different ground of defense, and payment was not in the case, except so far as involved in the defendant’s gratuitous payment into court of a sum to which the plaintiff was not actually entitled as a matter of law.

Judgment affirmed, with costs. All concur.

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