Powers v. McBride

1 N.Y. City Ct. Rep. 481

• Court: New York Marine Court
• Decided: December 15, 1882
• Status: Published

Opinion

Me Ad am, J.

—The plaintiff sued defendant to recover $251.11 for goods sold and delivered between July 8, and October 24, 1882. Tb e defendants answered alleging that.the credit as to $157.51 of the goods had riot expired when the action was commenced. This answer must be regarded as true so far as the same may be taken as an admission against the defendants.

The claim was . . • . . . . . $251.11

Amount not due according to defendant’s

answer ....... 157.51

Balance due when action was commenced . $93.60

The defendants offered to allow judgment for this sum ($93.60) with interest. From these admittedfads, it is clear that the acceptance of the offer (without any amended complaint) would have been no bar to a new action for the $157.51 after it became due (See Wilcox v. Lee, 1 Bolt. 355 ; S. C., 1 Abb. Pr. N. S. 250 ; 26 How. Pr. 418). As before remarked, the defendants’ answer is conclusive against them, that such credit had not expired. The allegation being true, the plaintiff was bound to accept the offer, and such acceptance under the case cited worked no prejudice to the plaintiff in respect to the portion of the claim as to which the credit had not expired when the action was commenced. Annexing to the judgment-roll an amended cmnplaint claiming $92.90 and interest, did the defendants no harm. The time to amend had not expired when this amendment was made. The only effect of claiming $92.90 in the amended pleading when the offer was for $93.60, is that the plaintiff is barred as to the difference (70 cents), which he loses.

Under the circumstances, the motion to correct the judgment by striking out the amended pleading, will be denied, but without costs.