118 N.Y.S. 215 | N.Y. App. Div. | 1909
Defendant, a physician, sued plaintiff in the Municipal Court for professional services. Two' days later, and before answer in the Municipal Court, plaintiff began this action for damages for malpractice. Thereupon the order appealed from was made consolidating the Municipal Court action with this action, and authorizing defendant to interpose as a counterclaim in this action the matter
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, McLaughlin and Clarke, JJ., concurred.
I agree that the court was without jurisdiction to consolidate the two actions, but l am of opinion that the Supreme Court should, have stayed proceedings in the action in the Municipal Court until the trial and determination of this action, because the Municipal Court did not have jurisdiction to award the plaintiff in this action the judgment which he demands against the physician for malpractice, and a' judgment in the Municipal Court in favor of the physician for" his services would bar the action for malpractice. (See Gates v. Preston, 41 N. Y. 113; Blavr v. Bartlett, 75 id. 150; Bellinger v. Craigue, 31 Barb. 534.)
' Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.