66 Barb. 370 | N.Y. Sup. Ct. | 1873
By the Court,
This action is brought to recover a balance alleged to be due for freight on the transportation by canal of a cargo of apples from Spencerport to Schenectady. The balance claimed by the plaintiff was $328.75. The defendant put in an answer, in .which he set up, by way of counter claim, that the plaintiff received from him 2,700 barrels of apples and only delivered 2,625, and claimed to apply in reduction of the claim of the plaintiff $247.50, as the value of the apples not delivered. Before putting in his answer the defendant had made an offer to allow the plaintiff to take judgment for $82.50, and costs, which was not accepted. The referee, by his findings, established the counter claim at $262.50. This the referee did by allowing a larger price for the seventy-five barrels of apples missing, than the defendant had claimed as his damages on account of the matter set up in his counter claim. This was clearly erroneous.
There can be no doubt but that a defendant is as much concluded by the amount of damages he claims in his counter claim as a plaintiff would be by the damages claimed in his complaint. If a jury finds a verdict for a greater amount of damage than the plaintiff claims, this is an error for which the judgment will be reversed, unless the plaintiff cures it by remitting the excess. If this was the only error in the case it might perhaps be cured by requiring the defendant to stipulate to reduce the amount of the counter claim allowed to him. But there are other errors which cannot be thus cured. On the trial it was claimed by the defendant that his counter
It appears, however, that on the 30th of December, 1871, the plaintiff’s attorney noticed the cause for trial at a circuit appointed in Oneida for the 22d of January, but before the time arrived the cause was stipulated over the circuit. This is a circumstance tending to show that at the time when the notice of trial was given, the plaintiff did not contemplate putting in a reply. This might have arisen from inadvertence, or from a belief on the part of the plaintiff’s attorney that no reply was necessary in the case, as he now insists, as matter of law. But it does not avail much by way of showing that the plaintiff did not on the 22d of January intend to reply, as against the fact proved by the official jurat to the reply, which is dated on that day, and the positive oath of the plaintiff’s attorney that he mailed the reply on that day. On this evidence, which is recapitulated by the referee in his report, he finds that the plaintiff’s attorney is mistaken in his affidavit, and that no reply was in fact served. We think the referee was mistaken ip such finding, and that the circumstances alluded to were not sufficient to overcome the positive oath of the plaintiff’s attorney as to' the service of a paper in the course of practice, and of which it is to be presumed he had a memorandum in his register made at the time. It would be dangerous, in the extreme, to allow a positive affidavit of the service of papers in the course of legal proceedings to be overthrown by anything less than positive proof, or the most convincing circumstances.
We think, also, there were errors made in the rejection of testimony offered by the plaintiff tending to show that he had not in fact received on his boat the
The judgment is reversed and a new trial ordered, costs to abide the event, and a new referee to be substituted.
Mullin, Talcott and E. D. Smith, Justices.]