Civill v. Wright

13 Wend. 403

• Court: New York Supreme Court
• Decided: January 15, 1835
• Status: Published

Opinion

The Court

held that the provision of the revised statutes, that, “to entitle a defendant to a set-off, he must plead or give notice of the same, specifying the nature of his claim with reasonable certainty, at the time of joining issue on a question of fact upon the merits of the cause,” 2 R. S. 235, § 51, although more specific than the former act on this subject, 1 R. L. 389, § 6, is onl y declaratory of the law in relation to pleadings in justices’ courts as it existed previous to the revision. 9 John R. 366. 3 Wendell,492. Thatitwas sufficient, on the joining of an issue in a justice’s court, for a defendant to say ^at he plead the general issue, and gave notice of set-off, unless the plaintiff at the time objected to the defence for want certainty, or required a specification of the nature of the defendant’s claim; and if he did not so objector require such specification, he could not- subsequently, on the trial of the cause, object to evidence of set-off on the ground that the nature of the claim had not been specified, at the time of joining the issue, with sufficient certainty. The court- therefore adjudged that the justice erred in exc'uding the evidence offered, and that, t íe common pleas, instead of affirming, ought to have rever .ed the judgment of the justice. See 3 Johns. R. 436.

Judgment reversed.