Behr v. Menendez — 58 N.Y. St. Rep. 814

Majority

p. 814

Henry Behr et al., as Receiver, etc., Resp’ts, v. Jose M. Menendez, App’lt.

(New York City Court, General Term,

Filed April 23, 1894.)

Headnote

Appeal—Remedy.

Where the trial court rules out the evidence offered to prove defendant’s counterclaim and passes on the remaining issues, his remedy is an appeal from the judgment and not a motion to set it aside.

p. 815

Roger M. Sherman, for app’lt; Sticlcney, Spencer & Ordway, for xesp’ts.

This is an appeal from an order denying a motion to vacate and set aside a judgment entered herein in favor of plaintiffs, on the ground that the same is irregular in that the issues arising on an alleged counterclaim were not tried or disposed of according to law. The judgment was entered on a verdict directed by the court. We have passed on this question in our opinion (at this general term) on the appeal from the judgment. At most, the contention set up by the defendant could have gone only to a reduction of plaintiffs’ claim as conceded by the defendant’s answer. The trial justice, having ruled out the evidence offered to prove defendant’s counterclaim, passed on the issues presented and thus there was no off-set or deduction to be made and the plaintiffs became entitled to a verdict for the full amount. The proper course left, then, for defendant, was by appeal from the judgment and not by the method here adopted, ■v-The order should, therefore, be affirmed, with costs.

All concur.