135 N.Y.S. 697 | N.Y. App. Term. | 1912
The plaintiff has brought an action for the sum of $350.04 in the Municipal Court. The - answer sets up a counterclaim alleging damages of $1,700 and asking an affirmative judgment for a portion of the said claim no.t exceeding $500. It appeared at the trial that a prior action was pending between the same parties 'in the County 'Court of Westchester county upon the cause of action alleged in the counterclaim." The learned trial justice thereupon dismissed the counterclaim without prejudice. It seems to me that this-dismissal was error. It is true that the plea of another action pending is ordinarily good against a cause of action alleged in a counterclaim as well as against a cause of action alleged in ¿ complaint (Ansorge v. Kaiser, 22 Abb. N. C. 305), .and the Code (§ 495) expressly provides that where this objection appears on the face of the counterclaim a demurrer thereto will lie. The object of the rule that the pendency of a former action between the same parties for the same cause may be pleaded in abatement to the -second action “ is to prevent vexation and the plea can never prevail except where the second suit is vexatious.” Compton v. Green & Ide, 9 How. Pr. 228. There can he no doubt but that a suitor having a claim against another person has the right either to bring an independent action or in a proper case to interpose his cause of action as a counterclaim or set-off. -Ordinarily where he has chosen to bring an independent action he may interpose his claim as a counterclaim only after discontinuing his prior action, for the law does not look with approval upon the pendency of two actions where full relief may be afforded in one action. The Municipal Court has not, however, jurisdiction to award judgment upon a counterclaim for more than the ‘sum of
Judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Guy and Bijue, JJ., concur.
Judgment reversed and new trial ordered.
