Knapp v. . Wallace , 41 N.Y. 477 ( 1869 )

This action was brought in the Court of Common Pleas of New York, by the plaintiff, as the assignee of Daniel Messmore, to recover compensation for services rendered by him to the defendant under a special contract in the purchase of two houses and lots in the city of New York.

The referee, to whom the issues were referred for trial, found in favor of the plaintiff, and the judgment rendered on his decision was affirmed by the General Term of that court.

It is therefore, conclusive on this court upon the questions of fact, and I find no ground for the reversal of the judgment for errors of law.

It was no defence to the plaintiff's claim, that the title to the property was defective. Messmore had not undertaken that it should be good. The contract between him and the defendant did not place his right to compensation on such a condition.

The defendant pleaded a set-off, and on asking one of the witnesses, who were the grantees of the Nicaragua Transit Company referred to in the defence, announced that the object of the question was to prove the set-off set up in his answer, which was objected to, 1st, on the ground "that the grant, if any, must be produced as the best evidence; that parol evidence is inadmissible;" and 2d, on the ground that the claim sought to be set off was "not a demand, the amount of which was liquidated or capable of being ascertained by calculation."

The objection was sustained, and the defendant's counsel excepted, but the exception is not relied on by him on this appeal, and it is sufficient to say, that the evidence offered was clearly inadmissible.

The judgment should be affirmed with costs.

MASON, J., also delivered an opinion for affirmance.

All concurring.

Judgment affirmed.