Rosenberg v. Goldstein

38 Misc. 753, 78 N.Y.S. 831

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1902
• Status: Published

Opinion

Per Curiam.

This is an appeal by defendants from a judgment of the Municipal Court, fifth district, in favor of plaintiff. The pleadings are oral. The action is brought for goods sold and delivered, the answer is a general denial and a demand for a bill of particulars. The only witnesses were the plaintiff and the defendants’ attorney. The plaintiff took the stand and proved the sale and delivery of the goods. On his cross-examination he was asked if defendants had not obtained a judgment for seventy-five dollars against him in another action, to which he replied in the affirmative, but added that he paid the same. The defendants’ attorney then took the stand and offered to prove by his own oral testimony that a previous action had been brought by the defendants herein, Goldstein and Lippman, against the plaintiff herein, Rosenberg, for seventy-five dollars, money loaned, in the Municipal Court, fourth district, and judgment obtained for defendants herein, said Goldstein and Lippman; that in that action Rosenberg had set up, as a counterclaim, the cause of action pleaded in the case at bar; that the justice gave judgment for Goldstein and Lippman for the full amount of their claim, thus dismissing said counterclaim. Plaintiff’s counsel objected, on the ground that the record was the best evidence. This objection was sustained and defendants excepted.

Defendants’ counsel made no attempt to offer to introduce the record, or any copy thereof, in evidence; nor did he move to amend his answer by setting up the defense of res adjudicaba. We are of the opinion that the ruling of the justice was correct.

Present: Freedman, P. J., • Truax and Gildersleeve, JJ.

Judgment affirmed, with costs.