Vessell v. Marx — 62 N.Y. St. Rep. 767

Majority

p. 767

Meyer Vessell, App’lt, v. Charles Marx, Resp’t.

(New York City Court, General Term,

Filed October 23, 1894.)

Headnote

Trial—Direction of verdict.

The court cannot, upon dismissing an action for want of prosecution, direct judgment on a counterclaim, which is denied by the reply.

Appeal from an order dismissing the action and directing a verdict for defendant.

Davis & Kaufman, for app’lt; L. K Miller, for resp’t.

While the justice below had the right to dismiss the plaintiff’s action for want of prosecution, he had no power to direct judgment for the amount of the counterclaim pleaded by the defendant. The plaintiff had replied to the answer, putting the counterclaim in issue, and the defendant, by pleading a counterclaim, made himself an actor, and was bound to bring the action to trial himself, if he desired to dispose of it. Arnal v. Rahlff, 4 Law Bul. 3. True, the court, in the order appealed from, granted the relief stated, “unless plaintiff or his attorneys, within three days after service of this order, consent in writing that the defendant may within six days thereafter serve an amended answer, without said counterclaim, and without prejudice to bring a separate action thereon .in any court of this city, and, if plaintiff so consents, then that motion be denied, without costs.” If the plaintiff had consented to this condition, all might have been well. But the judge could not punish a failure to consent by awarding a judgment on a contested counterclaim, the existence and amount of which were in dispute. Such disposition is unwarranted by any rule of practice.. The plaintiff

p. 768

was entitled to his day in court on the counterclaim, and had the constitutional right to its disposition by a jury, and he has been deprived of this substantial right because he failed to comply with a condition he was under no obligation to assent to. For these reasons the order appealed from must be reversed, with cost.

All concur.