John C Campbell, Respondent, v. Henry Mandeville et al., Appellants

John C Campbell, Respondent, v. Henry Mandeville et al., Appellants. In determining as to whether the “matter in controversy”in an action is $500 or over within the meaning of the provision of the Code of Civil Procedure (sub. 3, § 191), prohibiting an appeal to this court where the matter is less than that sum, resort may be had to the proceeding and evidence appearing in the record as well as to the pleadings. The complaint in an action to foreclose a mechanic’s lien, for work, labor and materials furnished under a building contract, claimed a balance due of $588.96. The answer denied any indebtedness and set up a counterclaim for $100. Defendants offered to allow judgment for $240.54, and their evidence on the trial showed they conceded sufficient to be due plaintiff to leave the amount in dispute, with the counter-claim added, less than $500. The court reduced plaintiff's claim to $493.39 and gave judgment for that amount, with interest, amounting in all to $511.66. Held, that the judgment was not reviewable here. (Argued June 5, 1888; decided June 12, 1888.) ■ This was a motion to dismiss an appeal on the ground that the amount in controversy was less than $500. The action was to foreclose a mechanic’s lien for work, labor and materials done and furnished under a building contract. The complaint alleged a balance due of $588.96. The answer denied any liability because of failure on the part of plaintiff to perform the contract and also set up a counterclaim for $100. The following is the opinion: “Although the answer is a denial of indebtedness and contains a counter-claim for defective work of plaintiff, an examination of the evidence before the trial court shows that what was in controversy between the parties was not the right of plaintiff to recover at all; but simply the number of brick furnished by him to the buildings in question; the amount of concrete done and the amount of excavation, with the values of the work and materials. Such resort to the proceedings and evidence is authorized in Knapp v. Deyo (108 N. Y. 518). The right of plaintiff to recover the market-value for work done and materials furnished by him does not seem to have been the subject of controversy upon the trial. The proof as to the counter-claim, interposed by defendants was as an offset to plaintiff’s recovery. The trial court reduced the plaintiff’s claim from $588.96 to $493.39, which, with interest added, amounted to $511.66. Taking the evidence adduced on defendant’s behalf as to the items of brick, cement and excavation, it is clear that they conceded sufficient to be due to the plaintiff from them to leave the amount in dispute, with the $100 counter-claim added, under the sum of $500. Considering this result of our examination of the evidence, in connection with defendant’s offer to' allow judgment for the sum of $240.54, we think the appeal should be dismissed, with costs, as the amount in controversy was under $500. “Appeal dismissed, with costs to the defendants.” Joseph F. Daley for motion. Edward V. Thornall opposed. [MAJORITY — Per Curiam] Per Curiam opinion for granting motion. All concur. Appeal dismissed.