Photos v. Coufos — 153 N.Y.S. 217

Majority

p. 217

PHOTOS v. COUFOS et al.

(Supreme Court, Appellate Term, First Department.

May 13, 1915.)

Headnote

Courts <§=>189—Municipal Courts—Discontinuance op Action—Judgment on Counterclaim.

The discontinuance of an action to foreclose a chattel mortgage in the Municipal Court terminates the defendant’s right to litigate his counterclaim, so that a hearing and judgment for defendant on the counterclaim was erroneous; and the fact that no objection to the procedure was made by plaintiff’s attorney did not warrant his recovery.

[Ed. Note.-—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <§=>189.]

<g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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

Action by Aleck Photos against Steve Coufos and “John Doe,” the true name of the defendant being unknown, but being the party conducting a restaurant at 995 Westchester Avenue, Borough of the Bronx, New York City, from a judgment for defendants, and from an order denying his motion to vacate it, plaintiff appeals.

Reversed, and judgment on counterclaim vacated.

Argued April term, 1915, before GUY, BIJUR, and PENDLETON, JJ.

Norman & Church, of New York City (Arthur B. Church, of New York City, of counsel), for appellant.

David B. Blum, for respondents.

In this action to foreclose a chattel mortgage a writ of seizure was granted by the court.

The defendants, other than the mortgagor, served an answer countérclaiming for the sum of $389.25 alleged to have been obtained from them through duress by the marshal; said defendants, it is claimed,

p. 218

being compelled to pay that sum of money to prevent the marshal from carrying their property away from their place of business.

When the cause was reached for trial, the plaintiff’s attorney moved to discontinue. Upon the objection of the answering defendants, the trial justice marked the action discontinued without prejudice to a new action upon plaintiff’s discontinuance, and then proceeded with an inquest on defendant’s counterclaim, and rendered judgment against the plaintiff for $418.66. A motion to vacate this judgment was denied. The learned trial justice erred in proceeding to take proof on the counterclaim after the discontinuance. The discontinuance terminated the right of the defendant to litigate the counterclaim in the action (A. M. Engel & Co. v. Davis, 81 Misc. Rep. 202 , 142 N. Y. Supp. 469 ), and the fact that no objection was made by the plaintiff’s attorney to the procedure does not warrant defendants’ recovery.

Judgment reversed, with costs, and judgment on counterclaim vacated. All concur.

Cases cited

A. M. Engel & Co. v. Davis 81 Misc. Rep. 202 N.Y. App. Term 1913-06-24 p. 218