Timpano v. David Stevenson Brewing Co. — 123 A.D. 903

Majority

p. 903

Second Department,

December, 1907.

Michael Timpano, Respondent, v. David Stevenson Brewing Company, Appellant.

Headnote

Judgment—counterclaim—action may not be maintained on matter set up as counterclaim in prior action after judgment therein.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough' of Brooklyn, in favor of the plaintiff for the surd of $119.40, damages and costs. The case was tried without a jury.

The claim upon which the judgment appealed from was rendered was clearly litigated between the parties in a prior action for the foreclosure of -a mortgage in the Supreme Court, in which suit the plaintiff herein was defendant. In his answer in that case he set up as a counterclaim the same claim upon which the present suit jvas brought, and the matter was there litigated to a conclusion. The plaintiff herein is bound by that decree. It follows that the .judgment must be reversed and a new trial granted, costs to abide the event. Woodward, Jenks, Hooker and Miller, JJ., concurred; Hirschberg, P. J., not voting. Judgment of the Municipal .Court reversed and new trial ordered, costs to abide the event.