Opinion
March, 1907.
Herman Roth, for appellant.
Jacob Levy, for respondent.
Appeal from a judgment rendered in favor of defendant dismissing the plaintiff's complaint and awarding the defendant thirty-two dollars and eighteen cents as a counterclaim. The case was tried by the court without a jury. The plaintiff sought to recover the value of certain goods which the defendant, as a carter, was to bring to him from the Pennsylvania Railroad Company. The goods were brought to plaintiff's store about nine-thirty P.M. At that time plaintiff's employee refused to receive them. They were then brought to the store the next morning. The driver would not deliver the goods until he got a receipt and his pay. Plaintiff would not agree to this. The defendant then took the goods away and stored them. Hence this suit for the value of the goods. Defendant interposed a counterclaim for his charges and storage amounting to thirty-two dollars and eighteen cents. The right to this counterclaim was based upon section 10 of a city ordinance but no ordinance was proved as required by section 941, Code of Civil Procedure. So far as we can discover no court takes judicial notice of a corporation ordinance. Porter v. Waring, 69 N.Y. 250. Nor was there the least proof of any counterclaim.
Present: GILDERSLEEVE, DAVIS and HENDRICK, JJ.
Judgment reversed and new trial granted, with costs to appellant to abide event.