
    George H. Hearman, Resp’t, v. Jacob H. Snyder, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 20, 1888.)
    
    Justice’s court—Effect of allowance of application of defendant’s CLAIM, WHILE OBJECTED TO AS COUNTER-CLAIM.
    On a trial before a justice of tlie peace the defendant interposed no defense to the plaintiff’s claim, but offered a note given by the plaintiff and another to the defendant. The plaintiff objected to the introduction of the note as a counter-claim, but stated that he would allow it as payment on the claim in action. The defendant gave his consent to the matter. Held, that judgment was properly entered for the plaintiff. The allowance of the note as payment did not affect the jurisdiction of the justice.
    Appeal from a judgment rendered by the county court of Rensselaer county, affirming a judgment rendered by a justice of the peace.
    
      Henry A. King, for app’lt; A. C. Comstock, for resp’t
   Learned, P. J.

The return of the justice is not very clear.

After reciting plaintiff’s proof of his cause of action it proceeds.

“Defendant offers anote of $125 given by plaintiff and another to defendant. Plaintiff objects to it as a counterclaim, and (that it) was not an offset' against plaintiff. Plaintiff said note was good and he would not repudiate, but would allow; but (it) was not a legal claim.

Defendant moves to dismiss the complaint (that) judgment be rendered against the plaintiff for cost; no objection to the note being paid, consenting to the whole thing.

“No defense, no witnesses sworn.”

Now it appears from this that no formal proof of the execution of the note was given. The plaintiff objected to its introduction, but would allow it.

The ground of defendant’s motion to dismiss is not stated. And it would seem that defendant had no objection to the note being paid, consenting to the whole thing.

"We think it is a fair' construction that the plaintiff objected to the note as a counter-claim, but offered to allow it as payment on this claim, and that the defendant consented to this.

Very possibly the plaintiff feared that, if the note came in as a counter-claim, the objection might be taken (which is now urged) that the sum total of the amounts would exceed the justice’s jurisdiction.

Therefore, he says, I object to this as a counter claim; but I am willing to allow it as a payment. The defendant says he has no objection to the note being paid, that is, by this allowance, and consents to the whole thing.

The matter was very justly and properly disposed of. The judgment of the county court should be affirmed, with costs.

Landon and Ingalls, JJ., concur.  