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Commercial Nat. Bank v. Hand

50 N.Y.S. 515 Court N.Y. App. Div. Decision date 1898-03-25 English

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p. 515
(27 App. Div. 145.)
COMMERCIAL NAT. BANK OF CHICAGO v. HAND.
(Supreme Court, Appellate Division, First Department.
March 25, 1898.)

Headnote

Costs—Extra Allowance.
Where a defendant concedes the plaintiff’s right to recover the amount claimed, but sets up a counterclaim, upon which the jury award him a substantial recovery, which is deducted from the amount conceded to be due to the plaintiff, it cannot be said that the plaintiff is the successful party, and therefore he is not entitled to an extra allowance upon the balance of his conceded claim for which he has judgment.
Appeal from trial term.
Action by the Commercial National Bank of Chicago against Elwood H. Hand. From an order granting an extra allowance of 5 per cent, on the amount of the verdict, defendant appeals. Beversed.
p. 516
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
.Charles De Hart Brower, for appellant.
J. H; Hull, for respondent.

The question presented in this case was decided by the late general term of the supreme court in the case of Railway 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 Ms 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 Ms 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 wMeh he had judgment.

The order appealed from should be reversed, with $10 costs and disbursements.