A. M. Engel & Co. v. Davis — 142 N.Y.S. 469

Majority

p. 469

(81 Misc. Rep. 202.)

A. M. ENGEL & CO., Inc., v. DAVIS.

(Supreme Court, Appellate Term, First Department.

June 24, 1913.)

Headnote

Courts (§ 189^[1] )—Municipal Courts—Dismissal of Action.

Plaintiff in an action in the Municipal Court may discontinue .his action as of right at any time before it is finally submitted, th'oúgh a counterclaim has been interposed, and in case of such discontinuance the action is terminated, and defendant may not continue the action to prove the counterclaim.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429,

458; Dec. Dig. § 189.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by A. M. Engel & Co., Incorporated, against Robert L. Davis. Judgment for defendant on a counterclaim, and plaintiff appeals. Reversed.

Argued June term, 1913, before SEABURY, PAGE, and BI-JUR, JJ.

Morris & Samuel Meyers, of New York City (Herman Druck, of New York City, of counsel), for appellant.

Hays, Hershfield & Wolf, of New York City (Gabriel I. Lewis, of New York City, of counsel), for respondent.

The plaintiff brought this action, claiming damages amounting to the sum of $280.17 by reason of fraud and deceit alleged to have been practiced upon it in procuring a written contract of employment, by virtue of which plaintiff advanced to the defendant that sum of money. The defendant interposed a counterclaim for $605 damages for breach of said contract. Issue was joined on April 16, 1913, and the case adjourned until April 30th. On the adjourned day the plaintiff moved for another adjournment, which motion was denied. Thereupon the plaintiff moved to discontinue the action, and the court said:

“Action discontinued. Complaint dismissed without prejudice.”

Thereafter, over objection by plaintiff, the defendant was permitted to introduce testimony in support of his counterclaim, and judgment was given in his favor thereon for $503.50 against the plaintiff. From,, this judgment plaintiff appeals.

This court has held that in the Municipal Court the plaintiff has a right to discontinue his action at any time before it is finally submitted,

p. 470

.even though a counterclaim has been interposed. Nichols v. Williams, 42 Misc. Rep. 527 , 86 N. Y. Supp. 136 ; Harper Machinery Co. v. Donegan, 134 N. Y. Supp. 888 . And the discontinuance of the action terminates the right of the defendant upon his counterclaim in that action,' as well as the plaintiff’s cause of action.

Judgment reversed, with costs.