Owen v. King

6 N.Y. St. Rep. 869

Opinion

Pratt, J.

The answer avers a contract wherein plaintiff agreed to sell to defendant for one year from April 1, 1885; all the milk produced by liis, plaintiff’s dairy; and that on the 12th of July, 1885, plaintiff refused, and has every since refused to perform said agreement, and avers special damages.

In reply defendant denies none of these allegations except the amount of damages.

No proof of the contract nor of the breach was necessary upon the trial.

It only remained for defendant to prove the damages sustained by the breach. This he did, and as the pleadings stood, should have had judgment ordered in his favor upon the counterclaim for the amount of damages proved, extinguishing the plaintiff’s claim, and for $1.34 and costs.

If the court considered that justice would thereby be promoted, a jury might have been withdrawn with liberty to plaintiff to move at special' term for leave to serve a new reply pleading the statute.

As such an amendment would introduce a new defense to defendant’s counterclaim, it could not properly be made upon the trial, and would not ordinarily be granted at special term, except upon payment of the costs tho‘ have accrued since the present reply was served.

It follows that the direction of a verdict for the plaintiff was erroneous.

Judgment reversed. New trial ordered, costs to abide event.

Dykman and Bartlett, JJ., concur.