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Russell v. Crowley

Supreme Court of New York, Appellate Division

November 29, 1911

SARAH A. RUSSELL, Respondent,
v.
MICHAEL J. CROWLEY, Appellant.

Page 362

[Copyrighted Material Omitted]

Page 363

APPEAL by the defendant, Michael J. Crowley, from a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of December, 1910, upon the verdict of a jury (except as to a counterclaim which was dismissed by direction of the court), and also from an order entered in said clerk's office on the 27th day of June, 1910, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

George J. Moore, for the appellant.

Earl W. Scripter, for the respondent.

OPINION

SMITH, P. J.:

This action is brought to recover the balance due upon a lease executed between the plaintiff and defendant. The cause of action is admitted. The defendant, however, has asserted two counterclaims, both of which have been disallowed. As to one of those counterclaims he makes no question upon this appeal, the jury having decided against him. The other counterclaim was taken from the jury by the court and was decided adversely to his contention, and this decision of the County Court presents the sole question here for review.

At the close of the evidence the defendant asked for a directed verdict in his favor upon the counterclaim. The trial judge submitted the question upon one of the counterclaims and reserved for his own decision the question raised by the other counterclaim. To this an exception was taken. But no request was made to go to the jury upon the question reserved by the trial court, and defendant having made a motion for a directed verdict, and not having requested to go to the jury upon the

Page 364

question reserved, the trial court might properly decide that question, and his decision can only be reviewed as the decision of a court upon a question of fact and law submitted to him by consent.

This action was begun before a justice of the peace in the town of Fort Covington. He rendered a judgment in favor of the plaintiff for forty-nine dollars and forty-six cents, and three dollars and twenty-six cents costs. The defendant thereupon applied to the County Court for a new trial. In County Court the plaintiff recovered a verdict for forty-five dollars, which with the costs make the judgment from which the appeal is taken.

The lease upon which plaintiff sues was made in February, 1907, for the term of one year from April 1, 1907, for the sum of seventy dollars. Upon that twenty-five dollars was paid, leaving the sum of forty-five dollars due thereon, for which plaintiff has recovered judgment. At the time of the execution of the lease there was also executed between the parties a land contract. Inasmuch as the ...


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