Majority
p. 274Hannah Alexander, as Administratrix, etc., Respondent, v. Emma A. Sumner, Appellant. Court of Appeals, January 18, 1887.
Headnote
Improper allowance. Stipulation to deduct.—An item charged and allowed to plaintiffs intestate as a counterclaim, in a former action brought by defendant’s husband against said intestate, is improperly allowed again in an action by his administrator against defendant, and such improper allowance constitutes sufficient error to justify a reversal, unless plaintiff will consent to deduct such item and pay costs of appeal.Appeal from a judgment of the general term, affirming a judgment entered upon the report of a referee.
William W. Badger, for appellant.
J. T. Marean, for respondent.
We think the case shows that the item of •
p. 275
$122.50, with interest from November 19,1877, credited by the referee to the plaintiff’s intestate, for interest paid by him at that date on the Phillips mortgage, was charged and allowed in the prior action brought by the defendant’s husband against the intestate, as a counterclaim in that action. It should not, therefore, have been allowed again in this action. With this exception we think the findings of the referee were justified by the evidence, or, at least, that there was not such an absence of evidence in respect to any of them that this court can interfere with his conclusion. An order should be entered reversing the judgment and directing a new trial, with costs to abide the event, unless the plaintiff stipulates to deduct therefrom the credit of $122.50, and interest, and the costs embraced therein, and to pay the costs of the appeal to this court, in which case the judgment, as modified, is affirmed, without costs to the plaintiff.
All concur.
Judgment affirmed.