
    SCHLAEPFER v. ABEND et al.
    (Supreme Court, Appellate Term.
    June 5, 1908.)
    Appeal from Blunicipal Court, Borough of Manhattan, Second District. Action by Emil Schlaepfer, doing business under the name and style of Schlaepfer & Co., against Nathan Abend and another, partners doing business under the firm name and style of N. Abend & Co. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.
    Edmund R. Terry, for appellant.
    Jacob Panken, for respondents.
   PER CURIAM.

Action to recover $401.25 for work, labor, and services between March 20 and April 29, 1907. Answer admits tender of goods $228.54. General denial as to balance. Pleadings oral. Defendants deposited in court $225 on account of the admitted indebtedness. Subsequently, as a condition for adjournments, the parties stipulated in writing as follows: “The defendants do hereby consent that the plaintiff receive, and withdraw the sum of $225 heretofore deposited with the clerk of this court, without any prejudice whatsoever against the plaintiff’s cause of action, and the clerk of this court is hereby authorized to pay said $225 to the plaintiff or his attorney.” It was so ordered, and money so paid. Upon the trial without a jury defendant had judgment with costs. Plaintiff appeals. The issues involved disputed items aggregating $168.02. As to the tender of goods to plaintiff, they are still with defendants, who testified. that plaintiff refused to receive them. Plaintiff testified that no complaint was made as to the goods manufactured by him for defendants, whose testimony related to details of trilling consequence. At the close of the trial there was a colloquy: “The Court: I understand the defendants consent that, in case judgment is found for defendants, they will deliver the goods on payment of $13.-50. Plaintiff’s Counsel: I ask your honor to notice the stipulation under which $225 was withdrawn without prejudice to plaintiff’s cause of action.” We think plaintiff proved his case, and was entitled to $393.02, less .deposit withdrawn, $225—$168.02. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

GILDERSLEBVB, P. J.

(concurring). I agree to reverse upon the ground that the judgment is against the weight of evidence, and upon the further ground that the judgment should have been for plaintiff for an amount including the $225 paid into court and subsequently received by the plaintiff. Dakin v. Dunning, 7 Hill, 30, 42 Am. Dec. 33; Friedman v. Fertel, 107 N. Y. Supp. 832.  