
    Marshall Barber et al., Resp’ts, v. Albert Gray, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 19, 1893.)
    
    Counterclaim—Failure to prove.
    "Where the counterclaim set up in an atiswer is for unliquidated damages, the amount thereof is not admitted by a failure to reply and the defendant is required to establish them by proof as upon an assessment of damages; and where he fails to do so, the court is justified in directing a verdict for plaintiff.
    Motion for reargument.
    
      Herman Fromme, for app’lt; Michael H. Cardozo, for resp’ts.
    
      
       See 51 St. Rep., 493; 58id., 937.
    
   Bookstaver, J.

When the court announced its decision on this appeal, it is quite true that it was placed upon the ground that the damages claimed were unliquidated, and the appellant asked too much on his motion, but although the reason stated for the ruling of the court may have been insufficient, the decision was correct. In making the announcement we did not overlook the fact that the two counterclaims were pleaded as defenses as well as counterclaims; and that by omitting to reply the plaintiff had for the purposes of this action admitted the coal delivered to have been of inferior quality, and mixed with dirt. But the defendant did not on the trial avail himself of the advantage given .him by the state of the pleadings. All the items of his counterclaims were for alleged damages sustained by him by reason of the inferior quality of the coal, and its being mixed with dirt. The amount of these damages, however, was clearly unliquidated, and the counterclaims were not for a sum or sums of money fixed by the terms of the contract, or capable of being determined therefrom by computation only. The amount of the counterclaims, therefore, was not admitted by failure to reply, and the appellant was required to establish them by proof as upon an assessment of damages. This he entirely failed to do. When, therefore, the court directed a verdict in favor of the plaintiffs for the full amount, no error was committed, as at that time there was no proof that the coal was of less value than the agreed price. It seems to us that this case is upon all fours with Scribner v. Levy, 23 St. Rep., 354.

The motion for a reargument should, therefore, be denied, with ten dollars costs.

Bischoff and Pryor, JJ., concur.  