Brady v. . Nally
New York Court of Appeals
Appeal from an order of the General Term of the Superior Court of the city of Mew York, entered June 25, 1894, which reversed a judgment in favor of defendant entered upon the report of a referee and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The proof having been received without objection, it is immaterial whether or not it strictly conformed to the allegations in the answer.
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Appeal from an order of the General Term of the Superior Court of the city of Mew York, entered June 25, 1894, which reversed a judgment in favor of defendant entered upon the report of a referee and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The proof having been received without objection, it is immaterial whether or not it strictly conformed to the allegations in the answer. The plaintiff is not in a position to raise the question, having acquiesced in that method of trial. (Tisdale v. Morgan, 7 Hun, 583; Hamilton v. Gridley,…
1Opinion of the CourtVann, J.
The referee, before whom this action was tried, found in favor of the plaintiff upon the claim set forth in the complaint, for labor performed and materials furnished, and allowed him the sum of $3,125 therefor. He found in favor of the defendant upon the third counterclaim set forth in the answer, for labor and materials, and allowed him therefor the sum of $5,139.68, including interest. He directed judgment in favor of the defendant for the difference between these sums, with costs. The plaintiff alone appealed, and the General Term reversed the judgment, upon the ground that “ the findings…
2Cases cited13 opinions
- Thomas v. . ScuttNew York Court of Appeals · 1891
- Briggs v. . PartridgeNew York Court of Appeals · 1876
- Vose v. . CockcroftNew York Court of Appeals · 1871
- Coleman v. . First National Bank of ElmiraNew York Court of Appeals · 1873
- Knapp v. . SimonNew York Court of Appeals · 1884
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3Cited by38 opinions
- Martin v. City of CohoesNew York Court of Appeals · 1975
- Mitchill v. LathNew York Court of Appeals · 1928
- Higgs v. De MaziroffNew York Court of Appeals · 1934
- Dodge v. . CorneliusNew York Court of Appeals · 1901
- Ross v. Florida Sun Life Insurance CompanyDistrict Court of Appeal of Florida · 1960
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