Opinion
June, 1913.
Morris and Samuel Meyers (Herman Druck, of counsel), for appellant.
Hays, Hershfield Wolf (Gabriel I. Lewis, of counsel), for respondent.
The plaintiff brought this action claiming damages amounting to the sum of $280.17 by reason of fraud and deceit alleged to have been practiced upon it in procuring a written contract of employment, by virtue of which plaintiff advanced to the defendant that sum of money. The defendant interposed a counterclaim for $605 damages for breach of said contract. Issue was joined on April 16, 1913, and the case adjourned until April thirty. On the adjourned day the plaintiff moved for another adjournment, which motion was denied. Thereupon the plaintiff moved to discontinue the action, and the court said: "Action discontinued. Complaint dismissed without prejudice." Thereafter, over objection by plaintiff, the defendant was permitted to introduce testimony in support of his counterclaim, and judgment was given in his favor thereon for $503.50 against the plaintiff. From this judgment plaintiff appeals. This court has held that in the Municipal Court the plaintiff has a right to discontinue his action at any time before it is finally submitted even though a counterclaim has been interposed (Nichols v. Williams, 42 Misc. 527; Harper Machinery Co. v. Dongan, 134 id. 888) and the discontinuance of the action terminates the right of the defendant upon his counterclaim in that action as well as the plaintiff's cause of action.
Present: SEABURY, PAGE and BIJUR, JJ.
Judgment reversed with costs.