Zuckerman v. Witkowski

115 N.Y.S. 157 | N.Y. App. Term. | 1909

PER CURIAM.

The action is for a breach of a contract, under which plaintiff was to sell to defendant 800 gross boxes of “Radium Corn Cure” each year for ten years, commencing September 25, 1906, at $10 per gross boxes. Plaintiff claims that defendant did not purchase the number of boxes required by the contract during the year ending September 26, 1907, and plaintiff sues for $1,730 damages. Defendant claims that plaintiff sold inferior and poisonous stuff, in violation of the terms of the contract, and not as represented and warranted, and defendant demands that the complaint be dismissed, and counterclaims $41,000 damages arising from plaintiff’s breach of contract and warranty. Plaintiff in his reply denies the counterclaim. The case was noticed for trial and placed upon the calendar for April, 1908, and subsequently plaintiff made a motion to place the case on the short-cause calendar, which motion was denied. The defendant, in response to plaintiff’s demand, served a long bill of particulars of his counterclaim. Plaintiff thereafter made a motion to discontinue the action on payment of costs. This motion was denied, and plaintiff appeals from the order denying said motion.

Where a counterclaim has been interposed, plaintiff has no absolute right to discontinue on payment of costs, and the court may in its discretion deny the same. Plaintiff desires to discontinue because he wants to bring another action in the Supreme Court on the same cause of action for $35,000 damages. He claims that it was owing entirely to the bad advice of his former counsel, in which he trusted, that he brought this action .for the damages for the first year only, instead of suing for the damages for the entire ten years, and his present attorney advises him that, under the decisions of this court and of the Court of Appeals, there is a strong probability that, in the event that a trial be had in this case, and of the success therein of the plaintiff, the judgment so recovered would be a bar to any further recovery by plaintiff, in any other suit on the same cause of action, for breach of the contract in suit, for the reason that the contract is an entire one, and plaintiff should seek to recover all the damages suffered and to be suffered for the ten years of the contract, instead of the damages for the first year only. It does not appear that any particular hardship would result to defendant from a granting of the motion to discontinue on payment of costs, as defendant could set up his counterclaim in the action to be brought in the Supreme Court. It seems to us that the motion should have been' granted.

Order reversed, and motion granted, without costs of this appeal to either party.