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Rothfeld v. Lintz

73 N.Y.S. 191 Court N.Y. App. Term English

Delivered by GILDERSLEEVE, J.

Contents

Majority

p. 191
(36 Misc. Rep. 220.)
ROTHFELD v. LINTZ et al.
(Supreme Court, Appellate Term.
October, 1901.)

Headnote

Municipal Court—Pleading Set-Off.
In an action in a municipal court, plaintiff, after defendant had pleaded a counterclaim, offered a judgment in his favor in another action against defendant as a set-off. Held that, as no reply to a counterclaim is required in said court, it was error to exclude the set-off because not pleaded.
Appeal from municipal court, borough of Manhattan.
Action by Isaac Rothfeld against Harris Lintz and others. From a judgment for defendants, plaintiff appeals.
Reversed.
p. 192
Argued before FREEDMAN, P. J., and McADAM and GILDERSLEEVE, JJ.
A. B. Schleimer, for appellant.
M. D. Steuer, for respondents.

The plaintiff sues for $450 rent. The defendants admit they owe $300 as rent, but deny the additional claim for $150, and set up a counterclaim for $600, money deposited with the plaintiff as security for the rent. The justice found that the defendants owed the plaintiff $300, but not the additional $150, and that the defendants were-entitled to a return of the $600 deposited with the plaintiff. He therefore gave judgment for the defendants in the sum of $300. The plaintiff appeals.

On the trial the plaintiff attempted to introduce a judgment recovered in another action by the plaintiff against the defendants as a set-off against the defendants’ counterclaim. It was ruled out on the sole ground, as appears from the opinion of the justice, annexed to the record, that it had not been pleaded. This ground was untenable, as no reply is needed to a counterclaim in the municipal court. Kuhn v. Novelty Co., 9 Misc. Rep. 54 , 29 N. Y. Supp. 73 ; Clinchy v. Apgar, 16 Misc. Rep. 374 , 38 N. Y. Supp. 79 . If the judgment was bogus, or if it did not constitute a proper set-off, neither of which objections appear from the record, the defendants should have stated those grounds in opposition to the admission in evidence of the judgment, but the latter should not have been excluded on the ground given for its exclusion.

Judgment reversed and new trial ordered, with costs to "abide the event. All concur.

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