Zappolo v. Lanigan , 285 N.Y.S. 863 ( 1935 )

Per Curiam.

The question presented by this appeal is whether the judgment for a sum of money is erroneous because no reference was made therein to a counterclaim. The complaint sought a recovery partially for an unliquidated amount and the counterclaim was also for an unliquidated recovery. The sum awarded is not an impossible one for the judge of the Municipal Court to have awarded by taking into consideration both the claims of the plaintiff and the counterclaim of the defendant. Every intendment is in favor of a judgment and if the counterclaim was in fact considered the judgment was proper in form (Civ. Prac. Act, § 477). We are referred to certain cases arising in the First and Second Departments, but these cases are distinguishable on the ground that they are cases (a) where findings were requisite and no findings were made as to the counterclaim, or (b) where the complaint demanded liquidated damages and the amount of recovery showed conclusively that the counterclaim was not considered, or (c) the opinion states categorically that the counterclaim was not considered. These precedents are distinguishable from the present case as the most that can be said here is that it does not appear conclusively that the counterclaim was considered. However, as we cannot, say that it was not considered, we must affirm the judgment.

All concur, except Edgcomb and Lewis, JJ., who dissent and vote for reversal on the law and for granting a new trial in memorandum. Present —■ Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.