Barnes v. Willet

Decided September 15, 1861

New York Supreme Court · decided 1861-09-15

This was an action brought against the defendant, as sheriff of the city and county of New York, to recover the amount of a debt owed to the plaintiffs by one Jacob Cohen, who escaped from the custody of the sheriff.

Cited by 1 later decisions — most recently November 1901

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1861-09-15

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By the Court.*—Ingraham, J.

¶1—It is not necessary to decide here whether proof as to the insolvency of the debtor can be given in evidence in mitigation of damages. That question must be decided on the trial when the evidence is offered.

¶2 *451It is set up in the answer in mitigation of damages. It is clearly no bar to the action, and should not have been pleaded as such. As matter of mitigation, it is improperly in the answer, and shows no defence. As a matter of pleading, it was erroneously set up in the answer.

¶3Order appealed from affirmed, with costs.

¶4 Present, Clerke, P. J., Ingraham and Leonard, JJ.