Davidson v. Remington
New York Supreme Court
Motion to set aside judgment, &c. The action was brought upon a note made by the defendant, payable to the order of one Emerson, for $131.89. The defendant, in his answer, admitted the execution of the note, and stated that, while Emerson was the holder of the note, he became indebted to the defendant, to the amount of $98.12, for work, labor, &c.; and it was agreed between him and the defendant, that such indebtedness should be applied upon the note.
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Motion to set aside judgment, &c. The action was brought upon a note made by the defendant, payable to the order of one Emerson, for $131.89. The defendant, in his answer, admitted the execution of the note, and stated that, while Emerson was the holder of the note, he became indebted to the defendant, to the amount of $98.12, for work, labor, &c.; and it was agreed between him and the defendant, that such indebtedness should be applied upon the note. The defendant claimed that, to this extent, the note was paid. No reply was put in by the plaintiff. The issue was noticed for trial at the…
1Opinion of the Court
Harris, Justice.
The question which this motion presents is, whether the matter set up by the defendant in his answer is a counter-claim, within the meaning of the term, as it is used in the 150th section of the Code. If it is, the plaintiff, by omitting to reply to it, as authorized by the 153d section of the Code, admitted the facts alleged, and was irregular in taking judgment for the whole amount of the note. If, on the contrary, the answer does not amount to a counter-claim, the plaintiff was not authorized to reply to it, and the facts alleged were put at issue by the operation of the…
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