Brussel v. Louvre Hotel Co. , 150 N.Y.S. 496 ( 1914 )

Lehman, J.

The plaintiff has recovered a judgment for $300 in a garnishee action. At the trial the plaintiff was permitted to prove the amount of salary due, by offering in evidence the pleadings in arf action brought by a third party against this defendant, and containing an alleged admission. It is not disputed that if these pleadings contained any admissions such admissions would not. be conclusive, but would be open to explanation and contradiction; yet, the trial justice refused all evidence offered for such purpose. The respondent, therefore, frankly admits that the judgment for $300 cannot stand, but urges that the defendant does not really dispute that it is liable for $180, and asks that the judgment be reduced to that amount and affirmed as modified. While I agree that the defendant does not dispute that it is liable for some amount, there is no competent proof that this amount, is $180. The offer of judgment for $180 was not accepted and cannot be introduced in evidence (Mun. Ct. Act, § 148), and the defendant has never expressly admitted that it owed this amount, except by argument that it did not owe more than $180. It follows that if either party objects we have no power to reduce the judgment to that sum.

Judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the parties stipulate that judgment may be reduced to $180; and appropriate costs in the court below, in which event judgment as reduced should be affirmed with costs to appellant in this court.

Delany and Whitaker, JJ., concur.

Judgment reversed and new trial ordered with costs to appellant to abide event unless parties stipulate that judgment be reduced, in which event judgment affirmed with costs to appellant.