Bellock v. Weitzer

Rich, J.: The record discloses' that on January 4, 1910, the parties entered into a written contract hy the terms of • which the plaintiffs undertook anil agreed to manufacture for the defendant, from yarn purchased by them of him for that purpose, one thousand dozen ladies’ and misses’ sweater coats, in accordance with specifications contained in said contract and a sample ■ theretofore made and ejxhibited to the defendant, to be delivered in weekly installmentsj delivery to commence on January seventeenth, in weekly lois of thirty dozen, h> be Increased to fifty dozen after February first. Under this contract the plaintiffs had made and delivered] to defendant on February twenty-fourth fourteen and seven-twelfths dozen of the coats, .and had at their place of business on Mjarch fourth fourteen and seven-twelfths dozen completed but ¡not delivered. The contract price of manufacture of the thirty-two and five-twelfths dozen was $284.89. Plaintiffs were indebted to defendant for the, yam used' in the sweaters, and some other small" items, in. the sum [293] of $136.43. Defendant’s son, on March fourth, went to plaintiffs’ place of business, checked off the sweaters he found there, and gave plaintiffs the check in suit, which represented the difference between the contract price of the coats manufactured and delivered up to that time and the amount- the plaintiffs were then owing the defendant. Before the check was presented for payment to the bank upon which it was drawn, the defendant stopped its 'payment. The answer alleges as a defense the contract, the warranty as to the manner of manufacture, length, style and weight of the coats; that the sweaters delivered were not in accordance with the requirements of such warranty and were worth $78.65 less than they would have been had they been as warranted. This defense is followed by a counterclaim for the breach and non-performance of the contract in consequence of the refusal to deliver the sweaters, to defendant’s damage of $900. An affirmative judgment was demanded on the counterclaim for $500. Upon the trial evidence was given by the defendant in support of the facts pleaded both as a defense and as a. counterclaim. At the conclusion of the trial the court reserved decision and later rendered judgment as follows: “Judgment is hereby rendered after-trial on the merits, in favor of the plain- - tiff against the defendant for the sum of $148.'41, costs $2.00, Allow. $15.00.” -Upon these facts the appellant contends that the court having failed to make any disposition of the counterclaim set up in his answer, the judgment must be reversed, and this contention finds support in the requirements of section 230 of the Municipal Court Act (Laws of 1902, chap. 580). (See Pinsker v. Pinsker, 44 App. Div. 501; Cable Flax Mills v. Early, 72 id. 213; La Grange v. Merritt, 88 id. 279; Morehouse v. Brooklyn Heights R. R. Co., 185 N. Y. 520, 528.) It is apparent that the counterclaim was not considered. The recovery is for the amount of the check and accrued interest. The matters involved in the defense and in the counterclaim are different. The record contains evidence applicable to both the defense and counterclaim. The trial court undoubtedly reached the conclusion that the defense was not .sustained, blit overlooked the counterclaim. [294] .Without considering jthe other questions presented-, we are agreed that the judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide- the event. Jerks, P. J., Burr and Woodward, JJ., concurred; Hirschberg, J., dissen ;ed. Judgment of the M" ordered, costs to abide the event. micipal Court reversed and new trial