Lord & Austin v. Ostrander
New York Supreme Court
THE complaint alleged that the defendant owed the plaintiffs $90.30 with interest from the 28th day of December, 1860, on an account for goods sold and delivered to him, and for moneys paid out by them at the defendant’s request.
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THE complaint alleged that the defendant owed the plaintiffs $90.30 with interest from the 28th day of December, 1860, on an account for goods sold and delivered to him, and for moneys paid out by them at the defendant’s request. The answer, among other things, alleged that before the commencement of this action, the defendant sued the plaintiffs before a justice of the peace, in an action on contract, wherein the claim of the plaintiffs might, could and ought' to have been set off against the claim of this defendant, and that the suit is still pending and undetermined. The issue was…
1Opinion of the Court
*339 By the Court,
Morgan, J.
Under the provisions of the revised statutes relating to pleading and set-offs in justices’ courts, the plaintiffs, who were first sued by the defendant before a justice of the peace, were required to plead or give notice of their claim in this action and avail themselves of it before the justice, or be forever precluded from maintaining any action to recover the same, or any part thereof. (2 R. S. 233, 236, § 57.) The pendency of the suit before the justice would therefore be a bar to this action. (Douglas v. Hoag, 1 John. 283. Townsend v. Chase, 1 Cowen, 115.) But…
2Cases cited2 opinions
- Averill v. . PattersonNew York Court of Appeals · 1853
- Douglas v. HoagNew York Supreme Court · 1806
3Cited by2 opinions
- Walker v. VandiverTennessee Supreme Court · 1915
- Inslee v. HamptonNew York Supreme Court · 1876