113 N.Y.S. 573 | N.Y. App. Term. | 1908
The issue of fact as to the making of the contract was decided by the trial judge in the plaintiff’s favor upon evidence that was sufficient, and no reason is apparent why his finding should be disturbed. The responsibility for the two or three previous actions which had been fruitlessly brought was assumed by the plaintiff’s attorney, whose explanation of the facts exonerated the plaintiff of all blame, and left his testimony and veracity unclouded.
The costs awarded against the plaintiff in the former actions should, however, have been allowed as a counterclaim. The attorney for the plaintiff argues that such" costs could not be counterclaimed against the recovery because they do not constitute one of the counterclaims set forth in section 501 of the Code of Civil Procedure or in any provision of the municipal court act, meaning thereby, I suppose (Laws 1902, p. 1538, c. 580), section 151. Those actions, so far as they affect the question under consideration, are identical, and expressly provide that in an action upon a contract any other cause of action on contract existing "at the commencement of the action is a proper subject of counterclaim. In this case the costs appear to have been awarded by judgments in the former actions, and they should be held to be obligations on a contract on the familiar and ancient principle that a judgment is a contract of the highest form.
The damages, which were found in the amount of $65, should therefore be reduced by the amount of such costs, namely, $18.56, leaving the damages in the reduced amount of $46.44, and, as thus modified, the judgment should be affirmed, without costs. All concur.
