Majority
p. 860SCHWARZ et al. v. HIRSHFIELD et al. (Supreme Court, Appellate Term. November 18, 1903.) Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Headnote
1. Appeal—Harmless Error.Any error in dismissing a counterclaim is harmless, defendants still being allowed to give evidence in support of the allegations of the counterclaim as a defense, and the jury thereon having found for plaintiffs.
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Emil Schwarz and others against Morris Hirshfield and another. From a judgment for plaintiffs, defendants appeal. Affirmed.
A. Oberstein, for appellants.
H. N. Wessel, for respondents.
The only point made by the appellants as a ground for a reversal of the judgment herein is that the trial court erred in dismissing a counterclaim interposed by the defendants, which dismissal was upon the ground that there was a prior action
p. 861
pending in the City Court between the same parties, involving the same subject-matter as set forth in said counterclaim. Notwithstanding such dismissal the defendants proceeded to trial, and testimony in support of the allegations set up in the counterclaim was given as a defense to plaintiffs’ cause of action and upon the question of fact thus litigated by the parties the trial court found in favor of the plaintiffs. We find no reason for disturbing the judgment.
Judgment affirmed, with costs. All concur.