Commercial National Bank v. Hand — 27 A.D. 145

Majority

p. 145

Commercial National Bank of Chicago, Respondent, v. Elwood S. Hand, Appellant.

Headnote

Extra allowance — denied to a plaintiff whose demand is conceded but is substantially reduced by a counterclaim recovered by the defendant.

Where the defendant in an action admits the plaintiff’s claim, hut interposes a .counterclaim upon which he obtains a substantial verdict, which is deducted from the claim of the plaintiff, the plaintiff should not be awarded an additional allowance of costs.

Appeal by the defendant, Elwood S. Hand, from an order of the Supreme Court, made at the Rew York Trial Term and entered in the office of the clerk of the county of Rew York on the 29tli day of December, 1897, granting the plaintiff an extra allowance of five per cent upon the amount of a verdict rendered in the action.

Charles De Hart Brower, for the appellant.

John Henry Hull, for the respondent.

The question presented in this case was decided by the late General Term of the Supreme Court in the case of New York,. Lake Erie & W. Ry. Co. v. Carhart ( 39 Hun, 363 ). The right of the plaintiff to recover the amount claimed by him was conceded by the defendant. The defendant interposed a counterclaim. for which he asked an affirmative judgment. The verdict of the jury awarded him a substantial recovery upon his counterclaim, the amount of which was deducted from the amount conceded to be due to the plaintiff, The only issue involved in the action being the demand of the defendant to recover upon ' his cause of action against the plaintiff, and he having succeeded in recovering a sum of money upon his counterclaim, it cannot be said that the plaintiff was the successful party. As a matter of fact, upon the only disputed question in the case the defendant succeeded, and, consequently, the plaintiff was not -entitled to an allowance upon the balance of his conceded claim for which he had judgment.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Barrett, Rumséy, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements.