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Myers v. Rosenback

65 N.Y. St. Rep. 116 Court N.Y. City Ct. Decision date 1895-01-12 English

Delivered by Fitzsimons, J.

Contents

Majority

p. 116
Frederick S. Myers, App’lt, v. Moses S. Rosenback, Resp’t.
(New York City Court, General Term,
Filed January 12, 1895.)

Headnote

Appeal—Harmless error.
A refusal to dismiss a counterclaim does not prejudice the plaintiff where the jury finds thereon against the defendant.
Appeal from a judgment in favor of defendant.
Hamilton B. Squier, for app’lt; Horwitz & Herschfield, for resp’t.

The defendant’s answer alleged that he was induced to sign the lease in question by fraudulent representations made by plaintiff. This issue was, in our judgment, clearly established in defendant’s favor by a preponderance pf evidence. The fact that the defendant remained in possession of the demised premises until June 6th, under the circumstances, did not make him liable for the June rent, for the reason given by the general term of this court. See 5 Misc. 337 ; also Wallace v. Lent, 1 Daly, 48L

The plaintiff suffered no injury because of the denial of his motion to dismiss defendant’s counterclaim. The jury found against the defendant upon said counterclaim. The same thing may be said of the alleged error of the trial justice concerning the admission of evidence to sustain the counterclaim. If there were any errors, evidently, they were harmless, so far as plaintiff was concerned. After carefully reading the record, we are convinced that the judgment is a just one, and should be affirmed. Judgment affirmed, with costs. All concur.

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