Levy v. Ash

88 N.Y.S. 131

Opinion

PER CURIAM.

The action was brought for goods sold and delivered by plaintiff’s assignor, and the defendant counterclaimed damages arising from a breach of contract between himself and plaintiff’s assignor. A judgment was rendered upon the counterclaim for the difference between the amount therein claimed and the plaintiff’s claim. The claim asserted by defendant would be at most an offset, and no affirmative judgment for the excess could be rendered against the plaintiff. Defendant’s proofs also show that, assuming that he was entitled to an offset, in no aspect would he be entitled to more than the sum of $18.50, which was less than the plaintiff’s claim. It is unnecessary to refer to other alleged errors affecting the admission of evidence, as sufficient has been shown to entitle the appellant to a reversal of the judgment.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.