
    FISH v. MARTIN et al.
    (Supreme Court, Appellate Term.
    January 5, 1912.)
    Payment (§§ 73, 89) — Evidence — Weight.
    Evidence held to show payment, but not an overpayment, of plaintiff’s account.
    [Ed. Note. — For other cases, see Payment, Dec. Dig. §§ 73, 89.]
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by George F. Fish against Jacob Martin and another. Judgment for defendants, and plaintiff appeals. Modified and affirmed.
    ' Argued before SEABURY, LEHMAN, and PAGE, JJ.
    
      Edward J. Maroney, for appellant.
    M. H. Newman, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   LEHMAN, J.

The plaintiff sues for a balance of $173.60, which he alleged was due and unpaid upon an account for goods sold and ■delivered amounting to $315.75. The defendants admit that the goods were sold and delivered, but claim that they have not only paid for the goods, but.have overpaid the account by mistake by $26.80. The trial justice has found in favor of the defendants, and has awarded judgment on the counterclaim for $26.80.

It is not disputed that the defendants have paid one bill of $26.80, and that thereafter they received a bill for $270.10, upon which they paid $96.40, deducting the .amount of $173.70, which they claim they had already paid upon a previous bill. The sole issue was whether or not the defendants had already paid this sum of $173.70. To prove this payment the defendants introduced evidence that after they paid the bill for $26.80 they received another bill for $173.70; that they paid this bill without noticing that it included the amount of the previous bill already paid. The plaintiff denies the payment, but the trial justice determined this issue in favor of the defendants upon conflicting evidence, and no reason appears why his determination should be disturbed.

He erred, however, in giving judgment for the defendants upon their counterclaim, for the evidence shows only payment and not an overpayment of the plaintiff’s account. It is true that their payment of $173.70 was an overpayment of the amount then due; but the defendants have deducted the whole amount, including the overpayment, from the subsequent bill for $270.10. This bill included all the items on the bill for $173.70, except the item of $26.80 already paid. By deducting the full amount of $173.70, the defendants received credit upon the last bill for their overpayment of the previous bih.

It follows that the judgment should be modified, by dismissing the counterclaim, and, as modified, the judgment in favor of the defendants should be affirmed, without costs on this appeal. All concur.  