Kelvinator-Syracuse, Inc. v. Evans ( 1931 )

Appeal from a judgment of the Supreme Court, entered in the Rensselaer county clerk’s office on March 3, 1930, and from an order entered on March 27, 1930, and also from an order entered on November 14, 1930.

Judgment and orders affirmed, with costs, on the ground that the portion of the answer designated “ defense ” was treated as a counterclaim upon the trial; the second counterclaim being the one that was dismissed without an exception, and that the court never intended to and did not direct a verdict for the plaintiff for replevin. The property without dispute belongs to the plaintiff. All concur, except Whitmyer, J., who dissents, with an opinion, and votes to reinstate the directed verdict of possession; Van Kirk, P. J., dissents and votes for reversal and a new trial on the ground that the court did not direct a verdict in replevin for possession of the property, its title to the property and right to possession not being in dispute, and the judgment should not be affirmed because of prejudicial errors at the trial.