Scheurer v. Monasii
Appellate Terms of the Supreme Court of New York
Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered upon the verdict of a jury in favor of the defendant for $329.36, damages and costs. The pleadings were written. The complaint is upon two causes of action: (1) $185 for a balance of money loaned and (2) $16.13 for goods sold and delivered.
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Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered upon the verdict of a jury in favor of the defendant for $329.36, damages and costs. The pleadings were written. The complaint is upon two causes of action: (1) $185 for a balance of money loaned and (2) $16.13 for goods sold and delivered. The amended answer admits the second cause of action and denies the first cause of action, but admits receiving $185 and sets up a counterclaim for $315, a balance claimed to be due under an agreement between the parties whereby the…
1Opinion of the CourtGiegebici-x, J.
The counterclaim was founded upon an entire contract for a year’s service, and proceeded upon allegations of *804performance. At the trial, the defendant moved to amend the answer by setting up a waiver of full performance, but, not being satisfied with the terms imposed for the amendment, he abandoned his motion and proved performance only to the extent of ten months, with a waiver by the plaintiffs of continued performance.
Under the well settled rule that an allegation of performance is not supported by proof of an excuse for nonperformance, the motion to dismiss the counterclaim for a variance…
2Cases cited1 opinion
- Schnaier v. NathanAppellate Division of the Supreme Court of the State of New York · 1898
3Cited by1 opinion
- Scheuer v. MonashAppellate Terms of the Supreme Court of New York · 1903