
    John W. Foulks, Resp’t, v. Jefferson H. White, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    2. Action—Services rendered—Set off or counter-claim to be available MUST BE PLEADED.
    Where in an action to recover for wages, the defendant claimed that he had expended a sum of money upon a certain business, in which the plaintiff was interested, and that such sum should be applied as a payment upon his wages, there was no evidence that any agreement of this character was made between the parties. Neither a set-off or counter-claim was pleaded by the defendant, Held, that as no set-off or counter-claim was pleaded, the defendant’s claim to an off-set for such sum could not be sustained.
    :2. Refusal to charge—When proper.
    A refusal to charge is proper where the request requires the court to disregard the evidence.
    Appeal from a judgment entered upon the verdict of a jury, at the Kings county circuit, and an order denying a motion for a new trial upon the minutes.
    This action was brought to recover damages for a breach of contract of employment, and also for an amount due for s, certain patent sold to defendant. The plaintiff was employed as superintendent by the defendant, for one year from September 13, 1886, at a salary of $1,500. In May, 1881, he was discharged, and his first claim is for $500, the .amount of his unpaid salary. The second claim is that he •sold to the defendant an interest in a certain patent for which the defendant was to pay him $1,500, but that only •$350 had been paid, leaving $1,150 still due. The defendant denies this. lie also claims that he paid the plaintiff $1,420 on account of salary, leaving but $80 due. He further claims that he has expended $100 in a certain business, in which the plaintiff had an interest, and that for one-half that amount, viz.: $350, the plaintiff became liable in his debt, and that the $350 should be taken as payment on ■account of the $1,500 agreed to be paid for his year’s services. The jury returned a verdict for the plaintiff, for '$430, and from that judgment, the defendant appeals.
    Doherty, Durnin <& Hendrick, for app’lt; Goodrich, Heady & Goodrich, for resp’t.
   Pratt, J.

There is no question that plaintiff became (entitled to receive $1,500 from, defendant upon fulfillment •of his duty under the contract.

This he did until May, when his discharge by defendant operated to relieve him from further fulfillment of its terms.

Therefore, as to the $430 claimed under the contract for services, the only question is, have they been paid for ?

It is not claimed that they have been directly paid for, but defendant claims that he has expended $700 upon a certain business in which plaintiff had some interest, and that for one-half of that sum, viz., $350, the defendant became liable in defendant’s debt, and the claim is made that said sum of $350 should be taken as a payment to the $1,500 agreed to be paid for t’he year’s services.

There is no evidence that any agreement was made by the parties when the $700 was expended, or at any other time, that plaintiff’s share, $350 should be taken as a payment upon his wages.'

It follows that advantage of that $350 could only be taken by way of set-off or counter-claim.

Neither is pleaded. Had the jury found in defendant’s favor upon the question of payment, the verdict would have been erroneous, as there is no evidence to sustain that plea.

The plaintiff was, therefore, entitled to a verdict in his favor for $430.

As to the second cause of action the jury found a verdict in favor of defendant, and as plaintiff does not appeal, we have no need to consider whether the verdict was right.

Two exceptions only were made by the judge’s charge. One was to the refusal of court to charge that plaintiff had no interest in the patents which he could convey.

It appears that one Lawton had advanced $1,500 upon the patents, secured by an assignment absolute in form. Upon those facts the court wisely declined to charge that plaintiff had no interest to convey. But were that error,' yet, as the verdict on that branch of the case is in defendant’s favor, such error has not prejudiced defendant.

Defendant’s request that the jury be charged that the $350, which plaintiff alleged was paid as part of the purchase-price of the patents, might be offset against the $430 -due for wages, on the ground that the consideration for the patent transfer had failed, was properly denied for various reasons.

First. As already pointed out, no such set-off or counterclaim is pleaded.

Second. As plaintiff had an interest remaining in the patents, notwithstanding his conveyance to Lawton, the •consideration had not failed.

Third. The request required the court to disregard the evidence offered in behalf of defendant, that the $350 was not paid in part payment for the transfer of the patents, but for an entirely different purpose.

The plaintiff is clearly entitled to the verdict in his favor and judgment is affirmed, with costs.

All concur.  