3 Cow. 336 | N.Y. Sup. Ct. | 1824
It is irregular to come in this form. Like all
.other questions arising on the trial, which relate to the direction of the Judge, o.r points reserved there, it should be brought here upon a case made. But the practice is well settled, upon the facts before us, that, in a case like this, where money may be properly paid into Court, the sum paid in must be considered as stricken out of the declaration. It is a defence, pro tanto, and unless the plaintiff proves a sum beyond what is paid, there should be a verdict for the defendant. We deny this motion, with costs; but as the form of bringing it forward has been misapprehended, we give the defendants ten days, within which to make a case, and bring the question properly before us.
Rule accordingly.
