Barber v. Gray

3 Misc. 146, 23 N.Y.S. 313

Opinion

Fitzsimons, J.

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 achual 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 due. 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, Oh. J., and McGown, J., concur.

Judgment affirmed.