Potter v. Smith
New York Supreme Court
Motion to set aside judgment. The action was brought to recover a balance alleged to be due upon the settlement of accounts between the parties. The plaintiff demanded judgment for $114,10, with interest. The defendant, in his answer, among other defences, claimed a set off of $40, which he alleged the plaintiff had agreed to allow. The plaintiff did not reply to the answer.
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Motion to set aside judgment. The action was brought to recover a balance alleged to be due upon the settlement of accounts between the parties. The plaintiff demanded judgment for $114,10, with interest. The defendant, in his answer, among other defences, claimed a set off of $40, which he alleged the plaintiff had agreed to allow. The plaintiff did not reply to the answer. The cause was noticed for trial at the Schoharie Circuit, in November, 1853. No affidavit of merits was served, and the plaintiff’s attorney moved the case as an inquest, and took a judgment for the amount claimed in his…
1Opinion of the Court
Harris, Justice.
The answer contained new matter, constituting a counter claim, to the amount of $40. If the plaintiff had intended to controvert this claim, he should have done so by a reply, as provided by the 153d section of the Code. Not having done this, the set off was admitted by the pleadings, and could not have been disputed upon the trial. If this was the only defence upon which the defendant relied, he could not, in this state of the pleadings, have made an affidavit of merits. The plaintiff, upon the inquest, was bound to allow the set off, as it stood admitted upon the record. It…
2Cases cited1 opinion
- Taylor v. BenhamSupreme Court of the United States · 1847
3Cited by2 opinions
- Richardson v. RogersSupreme Court of Minnesota · 1887
- Champion v. Plymouth Congregational SocietyNew York Supreme Court · 1864