New York Cornice & Skylight Works v. Zipkin

Plaintiff claims $300 balance due for work, materials, etc., furnished under a written contract. Defendant counterclaims $285 for the failure of plaintiff to perform the work according to contract. The court found in favor of defendant, and allowed defendant the full amount of the counterclaim (i. e., $285), for which sum, with costs, judgment was given for defendant. Plaintiff appeals.

Inasmuch as the evidence, taken in the view most favorable to defendant, shows that plaintiff is entitled to $300, less the defendant’s counterclaim of $285, the plaintiff was entitled to judgment for $15. While the appellate court has the power to modify the judgment, still, under the circumstances presented, we think a new trial should be granted.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.