
    Mary Phillips, Appellant, v. Margaret Lewis, Respondent.
    Appeal.— objection, by appellant that respondent’s counterclaim was not allowed— proof as to ability to pay and its contradiction.
    
    It is not, on appeal by the plaintiff, good ground of objection to the verdict of'a jury “for the defendant ” that it does not award to the defendant the amount of a counterclaim interposed by her. The plaintiff is not entitled to a reversal because the j ury did not accept all the figures as to payments made by the other party.
    Where the plaintiff offers proof tending to show that the defendant was without means to make some of the payments which she testified that she did make, it is competent for the defendant, with a view to contradicting such proof, to .show that she did have such means.
    Appeal by the plaintiff, Mary Phillips, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Hew York on the.9th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Hew York, and also from an order entered in said clerk’s ■ office on the 9th day of March, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      M. O... Milnor, for the appellant.
    
      John JP. Horren, for tire respondent.
   Williams, J.

The action was brought to recover a balance alleged to be due and owing for board and lodging. There was concededly an express agreement made between the parties, but they disagreed at the trial as to the terms of the agreement. The board and lodging extended from September 15, 1887, to May 1, 1888, a period of thirty-two' and a half weeks. The plaintiff claimed the defendant was to pay $30 per week, payments to be made from time to time, and any balance remaining unpaid to be paid when the defendant sold certain Mexican Land Improvement bonds which she held (and concededly those bonds were sold in August, 1889); that the amount of the board and lodging for the entire period was $975; that defendant paid thereon, in October, 1887, $75, and in January, 1889, $250, thus leaving unpaid $650, for which the action was brought. The defendant denied that she was to pay $30 per week, and that there was credit given for Airy amount until the sale of the bonds. She claimed that the agreed price for the board and lodging was $15 per week, and that she had fully paid for the same, and in addition had advanced to the plaintiff the sum of $227.50, for which she demanded an affirmative judgment, against the plaintiff. Evidence was given by the parties as to their respective claims, and the whole matter was submitted to the jury, and a verdict was rendered in favor of the defendant. The questions of fact were clearly for the jury, and it was their province to determine whether the agreement was for $30 per week, or $15 per week, and what amount had been paid by the defendant thereon. It is said that the verdict was improper in that, being for the defendant, it did not award her the amount of her counterclaim, $227.50. The verdict evidently was based upon the finding that the agreement was for $15, rather than $30 per week, and upon the finding that the defendant had paid nothing in excess of the amount owing to the . plaintiff under a contract for $15 per week. The jury had a right to so find. This action was not brought until April, 1894, nearly six years after the board and lodging had ceased, and no action, had been brought by the defendant for any alleged advancements or overpayment to the plaintiff. The jury found the agreed price per week was $15, amounting in all to $487.50. The plaintiff claimed she had been paid only the sum of $325, while the defendant claimed she had paid $715. The jury were not bound to take all the figures as to the payments, given by either party, and they may well have concluded that the account had, in fact, been balanced long before the action was commenced, inasmuch as neither party brought ¡ any action for • nearly; six years to recover any balance alleged tjo be owing, and unpaid. But if the verdict was erroneous in not awarding to the defendant :thé amount of her counterclaim, .she aloné could complain of such error. The plaintiff cannot, ask' for a reversal of the judgment for that. reason. It is unnecessary to refer to. the cases cited by counsel upon this subject.- They were cases -where the figures were conceded and undisputed, and. where the injured party asked for relief. Here the figures. as to the payments are disputed, and, the plaintiff, who asks for relief,, was benefited! rather than injured by the failure of the jury to award to the defendant anything for her counterclaim. We do not think the verdict indicates that the. jury were misled or failed to understand the evidence or" the nature of théir verdict. There is nothing in the claim that the verdict was -incomplete. The .form was proper, and its méaning beyond, doubt; If the verdict had been] in favor of the defendant "for the amount of her counterclaim, it Would have been in favor of deféndant for $227.50, but not having been for the counterclaim, its form “for the defendant,” simply was proper. The effect was to defeat the plaintiff" as ■ to her claim, and to award nothing to the defendant for her counterclaim. The verdict was. supported by sufficient evidence, and should not be disturbed unless some error was committed-by the court in the rejection or admission of evidence, or in the charge- to the jury.; -

Our attention is. called to many exceptions taken during the trial, all of which we have carefully examined and" considered.- Only a few of them are of siifficient importance^ however, to require discussion in this opinion. The plaintiff gave evidence tending to show that the defendant was without means to make some of the payments which, the deféndant testified she did make. Among others, one :of $90 on. June 15,■ -1887, and one between July 21 and July: 26, 1887. In reply to this evidence the defendant produced witnesses who testified to having paid her $524 June 15,1887, and $730 some time in July, 1887, This evidencé was referred to by the court in the charge. The. plaintiff objected to the. evidence of the payment of-the $524, and excepted- to its admission-and to the- remarks- by .the- court, in reference to- these payments in its,. charge. It having heen claimed by the plaintiff that the defendant was without means to make the payments she claimed to have made, it was competent for the defendant to show by any competent evidence that she did have such means. It did not tend to. show that she made the payments to plaintiff, but it tended to contradict the evidence on the part of the plaintiff that she had no means with which to make such payments. The plaintiff was urging want of means as a reason why the jury should discredit the defendant’s evidence that she made the payments to plaintiff. Certainly, the defendant had the right to answer and meet this erroneous claim on the plaintiff’s part. There was some misunderstanding as to the remarks of the court in its charge upon this subject, but the meaning of the court was made clear before the jury were sent out to deliberate upon their verdict.

It is said that the court, upon the motion of plaintiff, should have held that the defendant’s counterclaim was barred by the Statute of Limitations. The court, apparently, left this question to the jury.. The jury awarded the defendant nothing by Way of counterclaim. If there was any error in submitting this question to the jury, the defendant was not prejudiced by such error. It might be said the jury failed to award anything for defendant’s counterclaim because they found that the Statute of Limitations barred such claim — an additional suggestion in favor of the correctness of the verdict rendered.

We do not deem it necessary to refer in detail to the other exceptions taken by the plaintiff in the course of the trial. Hone of them are of such a character as to call for the reversal of the judgment.

The judgment should be affirmed, with costs.

Yah Bruht, P. L, Barrett, ' Rumsey and Patterson, JJ., concurred.

Judgment affirmed, with costs.  