Warren v. Traub

Appeal, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered January 17, 1952, which affirmed a judgment of the Municipal Court of the City of New York, Borough of Manhattan, in favor of defendant-respondent.. Per Curiam. The verdict of the jury for defendant upon plaintiff’s claim for professional services rendered was warranted by the evidence and should not be disturbed. Defendant’s counterclaim was predicated on a charge of malpractice with respect to the asserted negligent performance by plaintiff of the services rendered. The trial court erred, however, in refusing a request to charge the jury that the burden of proof was upon defendant to establish the allegations of her counterclaim (Civ. Prac. Act, § 424; Liberty Wall Paper Co. v. Stoner Wall Paper Mfg. Co., 178 N. Y. 219, 222; Celcis v. Rothbard, 227 App. Div. 751). [963] Accordingly, the determination of the Appellate Term should be modified to the extent of reversing the judgment in favor of defendant against plaintiff upon the counterclaim and by ordering a new trial of the issues thereon, and should otherwise be affirmed. Settle order. Peck, P. J., Dore, Cohn and Callahan, JJ., concur. Determination of the Appellate Term unanimously modified to the extent of reversing the judgment in favor of defendant against plaintiff upon the counterclaim and by ordering a new trial of the issues thereon and in other respects affirmed. Settle order on notice.