Bushby v. Berkeley

¶1An examination of the record clearly shows that the defendant is not entitled to an offset in what is termed the Puckhafer *966item. He refused to recognize the authority of the plaintiff to satisfy that claim and proceeded to enforce it against the railroad company, recovering a judgment which was subsequently affirmed by the Court of Appeals. Nor is there any basis for an offset in what is known as the Foster No. 2 item. The referee so found, and there is an abundance of evidence to sustain his finding. On an appeal by the plaintiff this court modified the judgment by allowing him interest on the amount found due from the defendant. (Bushby v. Berkeley, 160 App. Div. 916.) The same rule should be applied to the defendant and he should be allowed interest on $529.09, given to him.as an offset in the final judgment. The interest on this sum amounts to $214.28. The judgment appealed from, therefore, should be modified accordingly, and as so modified affirmed, without costs to either party in this court. Present — Clarke, McLaughlin, Laughlin, Scott and Dowling, JJ. Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.