New York Supplement (Volume 3) download

New York Supplement (Volume 3). New York Supreme Court

Book may have numerous typos, missing text, images, or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1889. Excerpt: ... plaintiff's recovery diminished beyond a nominal sum for any reason appearing by the record. After the trial was concluded, neither party having offered any proof, the defendant asked the referee to hold as matter of law that the answer set up a counter-claim, and he refused so to find, and the defendant filed and served an exception to such ruling. This exception is not available to the appellant, as at the time the ruling was made and the exception taken the trial bad been concluded; and if the referee had held that the answer set up a counter-claim, as we think it did, it would not have availed the defendant anything, as it had not proved any damages arising from the breach of the contract sued upon; nor does it appear that the defendant at any time offered to prove that it had sustained any damage by reason of a nonperformance of the agreement by the plaintiff. For these reasons we think this judgment should be confirmed. All concur. INDEX. Note. A star (*) indicates that the case referred to is annotated. ABATEMENT AND RE- VIVAL. Dismissal for want of jurisdiction, see Prac- tice in Civil Cases, 1, 2. Another action pending. An action commenced by service of a com- plaint on the sole defendant, where the sum- mons annexed to the complaint improperly contains the name of another joined as de- fendant, is a bar to a susequent action for the same cause, the summons in which conforms to the complaint, though by an indorsement on the latter summons the defendant is informed that the former summons was attached to the complaint served with it by aclerical mistake; as such notice does not amount to a discontin- uance of the first action, which can be ef- fected only by an order of court.--Trow's Printing & Book-Binding Co. v. New York Book-Binding Co., (CityCtN. Y.) 59. ACCORD AND SAT...

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