23 Misc. 2d 470 | N.Y. Sup. Ct. | 1960
Motion by defendant Kool Air Systems, Inc. for summary judgment.
On March 16, 1955 Argyle Associates, Inc. (hereinafter referred to as Argyle) entered into a written contract with Kool Air Systems, Inc. (hereinafter referred to as Kool) whereby the latter undertook to install an air-conditioning system at Argyle’s premises for $8,950. Kool subcontracted part of that job, but such fact is not material to resolution of the questions presented on this motion.
On or about November 14, 1955 Kool sued Argyle in the District Court of Nassau County to recover the sum of $2,163, the balance allegedly due under the contract of March 16, with interest. Argyle interposed a general denial. A judgment in favor of Argyle was entered on February 21,1957.
In the meantime, on or about August 27, 1956, Argyle commenced an action in the Supreme Court, Nassau County, to recover the sum of $7,285, with interest, for Kool’s alleged breach of the contract of March 16, 1955. This is the action to which the instant motion for summary judgment is directed.
On or about August 21, 1957, while the Supreme Court action was pending, Argyle commenced an action against Kool in the District Court of Nassau County to recover, under section 80-e of the Personal Property Law, the sum of $1,696.75, with interest which represented one fourth of the sums paid under the contract. A judgment in favor of Argyle was entered in that action on November 6, 1958. That judgment, however, has since been reversed by the Appellate Term and a new trial ordered. (N. Y. L. J., Dec. 21,1959, p. 10, col. 8.)
Kool moves for summary judgment in this action on the grounds that the judgments in the District Court actions are res judicata and that the judgment in the District Court action commenced by Argyle constituted an election of remedies.
The court finds no merit in either argument. The monetary counterclaim jurisdiction of the District Court of Nassau County at the time of the commencement of the action by Kool was $3,000 exclusive of interest, and costs and even by the time
So far as the District Court action commenced by Argyle is concerned, this motion for summary judgment was made prior to the Appellate Term’s reversal of the judgment obtained by Argyle in that action. That reversal has obviated the necessity of determining whether that judgment, unreversed,
The motion is accordingly denied. Submit order.