White v. . Smith
New York Court of Appeals
Appeal by defendant from an order of the General Term of the sixth judicial district, reversing a judgment entered in Schuyler county, upon the report of a referee.
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Appeal by defendant from an order of the General Term of the sixth judicial district, reversing a judgment entered in Schuyler county, upon the report of a referee. (Reported below in 1 Lansing, 269.) The complaint alleged that plaintiffs performed work and labor, as carpenters and joiners, for defendant, and furnished materials, to the amount of $541.90; that there was a balance due them, “ after deducting all payments made by defendant to the plaintiffs thereon, of $175.75.” The answer was a general denial, and also a counter-claim for damages arising from the unskillful and unworkmanlike…
1Opinion of the CourtPeokham, J.
The plaintiffs’ counsel insists, that the referee erred in finding a payment of $366.15 to the' plaintiffs. The Supreme Court so held, and upon that ground set aside the judgment. Ho point of this kind seems to have been presented at the trial, either in the receipt or exclusion of evidence, or by any decision upon any question raised as to the pleadings.
But as there was no proof given of any payment, and payment is found, and perhaps sufficiently excepted to, the pleadings must contain an admission thereof, in substance or the order must be affirmed. I think they do in substance.
The…
2Cited by17 opinions
- Holmes v. . JonesNew York Court of Appeals · 1890
- Conkling v. . WeatherwaxNew York Court of Appeals · 1905
- Boots v. CanineIndiana Supreme Court · 1884
- Lux & Talbott Stone Co. v. DonaldsonIndiana Supreme Court · 1903
- Smelser v. Wayne & Union Straight Line Turnpike Co.Indiana Supreme Court · 1882
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