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Besser v. Krasny

Decided: May 16, 1934.

HYMAN BESSER, TRADING AS BESSER & COMPANY, PLAINTIFF-APPELLEE,
v.
RALPH KRASNY AND JOSEPH PLOFSKY, INDIVIDUALLY AND AS PARTNERS TRADING AS HAWTHORNE SASH AND DOOR COMPANY, DEFENDANTS-APPELLANTS



On defendant's appeal from judgment rendered in favor of plaintiff in the District Court of the Second Judicial District of the county of Essex. Affirmed.

For the appellee, Simon Englander.

For the appellants, Krasney & Milgrom (Samuel S. Krasney, of counsel).

Before Justices Parker, Lloyd and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. Plaintiff sued defendants for services rendered as accountant. The state of demand was made up of five (5) counts.

First count. Balance of $175, plus interest and costs, for services for a given period. Second count. For $150, plus interest and costs, as the reasonable value for the services rendered by plaintiff in the 1928 federal government assessment against defendants. Third count. For accounting services, &c., for the year 1930, amount claimed under this count was $200. Fourth count. For $525, interest and costs, being the sum total of the first, second and third counts. Fifth count. For $525 and based on an express promise and on the reasonable value for said services. Plaintiff expressly waived any excess, under the last count, over the sum of $500.

Summons was issued on October 28th, 1931. The plaintiff, in accordance with section 61b of our District Court act, as amended by Pamph. L. 1929, p. 758, demanded that defendants file a written specification of the defenses intended to be made to the action. Plaintiff also made a demand for a trial by jury. The defendants moved to dismiss the proceedings and to strike the summons and complaint because of lack of jurisdiction of the court to hear the cause, defendants

claiming, although it does not appear in the notice, that the plaintiff demanded a sum greater than that over which the court had jurisdiction. This motion was argued and the court found that the excess of the sum total of all counts, above $500, was expressly waived.

Defendants filed written specifications of defenses. They are as follows: (1) The professional services which the plaintiff did render to the defendants were done in a wrongful and negligent manner. (2) The plaintiff wrongfully, negligently and mistakenly rendered the professional services indicated in the complaint, to the defendants so as to greatly damage the defendants. (3) As a result of the negligence on the part of this plaintiff in the manner in which said professional services were rendered, the defendants were obliged to pay to the United States government on income tax return the sum of $199.62 over and above any amount they would otherwise have had to pay. Defendants also filed a counter-claim based on the same facts set forth in their specifications of defenses.

When this case came up for trial plaintiff's attorney moved for a directed verdict on the pleadings on the ground that the specifications of defenses filed by the defendants admitted the services of the plaintiff in the premises. Leave was asked by defendants to amend the specifications of defenses filed to include denial of amount stated in the complaint but it was denied.

The jury being sworn, plaintiff renewed the motion for judgment and defendants likewise renewed their motion to dismiss the entire proceedings for lack of jurisdiction. This motion was also denied and an exception to court's ruling allowed. The state of case discloses the following: "Plaintiff, having admitted the claim of $199.62 as set forth in the counter-claim of the defendants, the court then directed the jury to bring in a verdict in favor of the plaintiff in the amount of $300.38, after allowing the amount claimed by the counter-claim, plus $36 for ...


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