Clinchy v. Apgar

Bischoff, J. No reply is required- to a counterclaim 'in' ah • ■ action brought in one of the District" Courts in the city of New York (Kuhn v. Am. Aut. K. & N. Co., 9 Misc. Rep. 54), and, in . any case, the defendant’s litigation .of the counterclaim, without . -objection, waived the effect of the plaintiff’s failure to reply., Muldoon v. Blackwell, 84 N. Y. 646. [375] The complaint was for goods sold and delivered, and the amount for which the jury found for the plaintiffs, and judgment was-rendered in their favor, was conceded to be due and owing from the defendant. The only issue, therefore, which was litigated upon the trial referred .to the defendant’s counterclaim for work, labor and services performed, and materials furnished, in the repair of a boiler, at the alleged instance and request of the plaintiffs. The plaintiffs were' partners, and the defendant testified that-he was directed to do the work by James 27. Clinchy, one of the plaintiffs, but the latter denied that he gave the defendant any such direction. There was, furthermore, evidence from which it was a fair and permissible inference that the repairs were made-necessary because of the originally defective setting of the boiler by the defendant under a contract with one Briggs. Bearing in mind that the witnesses referred to, James 27. Clinchy and the defendant, were each personally interested in the result of the trial,,, and their testimony, therefore, not conclusive, we cannot say, in the absence of any corroborating circumstances on either side, that the jury erred in rejecting the defendant’s claim of employment, by the plaintiffs and crediting James 27. Clinchy’s denial of any snch employment. Evidence of the terms of the defendant’s contract with Briggs was relevant to the issue litigated, because, if by the terms of the- . contract the defendant was bound to do the repairs, it tended to refute his contention that- the work was done at the instance and-request of these plaintiffs. Platner v. Platner, Abbott’s Select Cases of Evidence, 617; 78 N. Y. 90. The justice, therefore, did not err in the admission of such evidence, or in refusing to strike it out, or to direct the jury to disregard it. Other exceptions to rulings in the admission of evidence appear in the record, hut are of snch a trivial character as not to require; discussion. Nearly all such exceptions also are invalid because no ground of objection was stated. Cruikshank v. Gordon, 118 N. Y. 178. The judgment is affirmed, with costs. Daly, P. J., and MoAdam, J., concur. Judgment affirmed, with costs.