Cebrelli v. Franklin Contracting Co. , 107 N.Y.S. 566 ( 1907 )

PER CURIAM.

Upon the trial of this action the complaint was dismissed, and the defendant, who had interposed a counterclaim, was given a judgment against the plaintiff for the full amount of such counterclaim. An examination of the record fully justifies the finding of the court below in its dismissal of the complaint, but as the plaintiff is the assignee of the demand sued upon, no affirmative judgment could be given against him. The counterclaim could only be allowed to an amount equalling the plaintifi’s claim. Municipal Court Act, Laws 1902, p. 1539, c. 580, § 152, subd. 3. The judgment rendered should have been for the defendant. Brown v. Coleman, 55 Hun, 501, 8 N. Y. Supp. 808.

Judgment modified by directing that the same be rendered for the defendant in the court below, with appropriate costs in that court, and, as modified, affirmed, without costs of this appeal to either party.