Levy v. Ash — 88 N.Y.S. 131

Majority

p. 131

LEVY v. ASH.

(Supreme Court, Appellate Term.

May 5, 1904.)

Headnote

1. Counterclaim—Affirmative Judgment.

In an action for goods sold and delivered by plaintiff’s assignor to defendant the latter could not recover under his set-off an affirmative judgment against plaintiff.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Abraham Levy against Magnus Ash. From a judgment for defendant on his counterclaim, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Irving I. Kremer, for appellant.

Steuer & Hoffman, for respondent.

V1. See Set-Off and Counterclaim, vol. 43, Cent. Dig. §§ 107, 110.

The action was brought for goods sold and delivered by plaintiff’s assignor, and the defendant counterclaimed damages arising from a breach of contract between himself and plaintiff’s assignor. A judgment was rendered upon the counterclaim for the difference between the amount therein claimed and the plaintiff’s claim. The claim asserted by defendant would be at most an offset, and no affirmative judgment for the excess could be rendered against the plaintiff. Defendant’s proofs also show that, assuming that he was entitled to an offset, in no aspect would he be entitled to more than the sum of $18.50, which was less than the plaintiff’s claim. It is unnecessary to refer to other alleged errors affecting the admission of evidence, as sufficient has been shown to entitle the appellant to a reversal of the judgment.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.