Barber v. Gray — 51 N.Y. St. Rep. 493

Majority

p. 493

Marshall Barber et al., Resp’ts, v. Albert Gray, App’lt.

(City Court of New York, General Term,

Filed March 17, 1893.)

Headnote

Ooumterclaim: — Failure to prove.

Where the defendant’s answer presents a sufficient cause of counter-. claim for unliquidated damages, but he fails to submit or offer evidence to show the actual damages, the court is justified in directing a verdict for plaintiff for the amount claimed.

Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.

Albert Fromme, for app’lt; Billings & Cardoza, for resp’ts.

The defendant’s answer presented a sufficient cause of counterclaim, but the same being for unliquidated damages, he was required to submit evidence showing his actual damages, which, if done in the case, because of plaintiff's failure to serve a reply, would have entitled the trial justice to instruct the jury to deduct the amount of damages so ascertained from the amount claimed by plaintiff, and render a verdict for plaintiff for the balance found díte.

The failure of defendant to submit, or offer to submit, testimony of the character mentioned, justified the trial justice in directing a verdict, as he did, in plaintiff’s favor for the amount claimed.

The fact that he gave a wrong reason does not affect his action, which, as above shown, was right.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and McGown, J., concur.