
    John C. Campbell, Resp’t, v. Henry Manderville, et al., Impleaded, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 12, 1888.)
    
    Appeal—When dismissed because amount involved less than $500.
    The plaintiff sued for the value of work done and materialsfumished. The trial court reduced his claim from $588.96 to $493.39, which, with interest, amounted to $511.66. The defendants conceded sufficient to be due to the plaintiff from them to leave the amount in dispute, with the $100 counterclaim added, under the sum of $500. The defendants had offered to allow judgment for $240,54. Held, that the appeal should he dismissed, with costs, to the defendants, as the amount in controversy was under $500.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of plaintiff entered upon the trial of the action at the Westchester county special term.
    
      Joseph F. Daly, for motion; Edward V. Thornhall, opposed.
    
      
       See 12 N. Y. State Rep., 874.
    
   Per Curiam.

Although the answer is a denial of indebtness, and contains a counterclaim for defective work of plaintiff, an examination of the evidence before the trial court shows that what was in controversy between the parties was not the right of plaintiff to recover at all, but simply the number of brick furnished by him to the buildings in question, the amount of concrete done and the amount of excavation, with the values of the work and materials. Such resort to the proceedings and evidence is authorized in Knapp v. Deyo, decided by this court, February term, 1888. 108 N. Y., 518 ; 13 N. Y. State Rep., 823.

The right of plaintiff to recover the market value for work done and material furnished by him does not seem to have been the subject of controversy upon the trial. The proof as to the counterclaim interposed by defendants was an offset to plaintiff’s recovery. The trial court reduced the plaintiff’s claim from $588.96 to $493.39, which, with interest added, amounted to $511.66. Taking the evidence adduced on defendants’ behalf as to the items of brick, cement and excavation, it is clear that they conceded sufficient to be due to the plaintiff from them as to leave the amount in dispute, with the $100 counterclaim added, under the sum of $500. Considering this result of our examination of the evidence, in connection with defendants’ offer to allow judgment for the sum of $240.54, we think the appeal should be dismissed, with costs, as the amount in controversy was under $500. Appeal dismissed, with costs to the defendants.

All concur.  