Osborn v. Etheridge
New York Supreme Court
Error from the Herkimer common pleas. Osborn sued Etheridge in a justice’s court, and presented as his demand a bill of costs accrued in the defence of summary proceedings instituted by Etheridge as landlord against him as tenant, under the statute authorizing such proceedings by landlords against tenants for the non-payment of rent.
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Error from the Herkimer common pleas. Osborn sued Etheridge in a justice’s court, and presented as his demand a bill of costs accrued in the defence of summary proceedings instituted by Etheridge as landlord against him as tenant, under the statute authorizing such proceedings by landlords against tenants for the non-payment of rent. The bill consisted of sundry items—such as drawing affidavit to oppose application, drawing subpoena, brief, and attendances before judge—amounting, together, to the sum of $9,94 : of which sum, however, Osborn claimed to recover only $4,69. Etheridge pleaded the…
1Opinion of the Court
*340 By the Court,
Savage, Ch. J.
(The Chief Justice, after disposing of the questions as to the right of the plaintiff to give evidence of the breach of the defendant’s covenant contained in the lease, and as to the former recovery, and determining that the claim of the defendant for rent was a valid and subsisting demand, proceeds as follows.) The only remaining question is whether the set-off was offered in a suit, founded upon a demand which was itself the subject of set-off) according to law. 2 R. S. 234, § 50, sub. 5. Such demands must arise upon judgment or upon contract express or implied.…
2Cited by6 opinions
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- Fowler v. PayneMississippi Supreme Court · 1873
- Ainslie v. BoyntonNew York Supreme Court · 1848
- Berry v. BrettThe Superior Court of New York City · 1860
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