SCHENCK v. FISCHER.
(Supreme Court, Appellate Term, First Department.
November 8, 1912.)
Judgment (§ 84*)—Admission of Debt.
Where defendant admitted liability on a cause of action for $30.05, and set up a counterclaim, which was dismissed, plaintiff was entitled to judgment for that amount, and a judgment for defendant was erroneous.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 137, 139, 140; Dec. Dig. § 84.*]
«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Elliott Schenck against Louis Eischer. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
Guernsey Price, of New York City, for appellant.
Charles Eischer, of New York City, for respondent.
BIJUR, J.
Plaintiff sued on five causes of action arising out of a contract. The total amount claimed was over $200. The third cause of action, amounting to $30.05, was expressly admitted by defendant. Defendant set up a counterclaim of $36.
From the record it appears that the counterclaim was dismissed, whereupon plaintiff admittedly became entitled to a judgment for $30.05; yet judgment for the defendant was rendered in the sum of $22.31, consisting of $2.31 “fees” and $20 “extra fees.”
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.