Brewer v. Isish
New York Supreme Court
This is an appeal from a judgment entered on tne report of a referee. The complaint contained two counts for work and labor performed and goods sold by the plaintiff and at the defendant’s request. The second answer of the defendant set up a counter claim for wrork and labor, goods sold, &c., amounting to $100, and claimed judgment against the plaintiff for $50. There was no reply to this answer.
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This is an appeal from a judgment entered on tne report of a referee. The complaint contained two counts for work and labor performed and goods sold by the plaintiff and at the defendant’s request. The second answer of the defendant set up a counter claim for wrork and labor, goods sold, &c., amounting to $100, and claimed judgment against the plaintiff for $50. There was no reply to this answer. The referee found and reported that the plaintiff had performed work and labor for the defendant, and sold and delivered to him property of the value of $39.94, and decided, as a matter of law, that…
1Opinion of the Court
By the court—Greene, Justice.
It is claimed by the appellant that the referee erred in rendering judgment for the defendant for the amount of his counter claim, as it is alleged in his answer, without requiring proof of the amount of such claim. The appellant insists that the only effect of a failure to reply to that part of the answer, is to admit a cause of action of the nature alleged, and that without proof of the amount of his claim, the defendant was entitled to be allowed no more than nominal damages by way of set-off.
The respondent insists that the appellant is precluded from raising…
2Cited by3 opinions
- Light v. KennardNebraska Supreme Court · 1881
- In re Will of BowenCalifornia Supreme Court · 1868
- Dainese v. AllenThe Superior Court of New York City · 1873