Rothfeld v. Lintz

36 Misc. 220, 73 N.Y.S. 191

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1901
• Status: Published

Opinion

Gildersleeve, J.

The plaintiff sues for $450 rent. The defendants admit they owe $300 as rent, but deny the additional cláim for $150 and set up a counterclaim for $600, money deposited with the plaintiff as security for the rent. The justice found that the defendants owed the plaintiff $300, but not the additional $150, and that the defendants were entitled to a return of' the $600 deposited with -the plaintiff. He, therefore, gave judgment for the defendants in the sum of $300. The plaintiff appeals.' On the trial the plaintiff attempted to introduce a judgment, recovered in another action, by the plaintiff against the defendants, as' a set-off against the defendants’ counterclaim. It was ruled out on the sole ground, as appears from the opinion of the justice, annexed to the record, that it -had not been pleaded. This ground was untenable as no reply is needed to a counterclaim in the Municipal Court. Kuhn v. Knife Co., 9 Misc. Rep. 54; Clinchy v. Apgar, 16 id. 374. If the judgment was bogus, or if it did not constitute a proper set-off, neither of which objections appears from the record, the defendants should have stated those grounds in opposition to the admission in evidence of the judgment, but the latter should not have been excluded on the ground given for its exclusion.

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

Freedman, P. J., and McAdam, J., concur.

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