Nesbit v. Braker

McLaughlin, J. (dissenting):

I am unable to agree with the other members of-the court that the judgment, in so far as it disallows the first counterclaim pleaded, should be affirmed. There have been two trials of the action. A-t the first trial this counterclaim- was disallowed, but on appeal the judgment was^ reversed as against the evidence and a new trial ordered. (Nesbit v. Braker, 104 App. Div. 393.) Mr. Justice Hatch, in delivering the opinion for a majority of the court, referring to this counterclaim, said: “Aside from mere, oral proof *918however, stand certain, physical conditions which…