Opinion
December, 1908.
George W. Carr, for appellant.
Merrill E. Gates, Jr. (H. William Smith, Jr., of counsel), for respondent.
One of the points upon which the appellant lays great stress is that the City Court of the city of New York had no jurisdiction of the first cause of action set forth in the complaint. In that cause of action the plaintiff sought to recover back from the defendant the sum of two hundred dollars which the plaintiff had deposited as security for the faithful performance of his duties as janitor and collector of rents of the houses in question.
The defendant claimed that the plaintiff had collected and received rents in excess of his wages and the expenses paid or incurred by him, and that such excess amounted to more than the deposit with interest.
At the opening of the case a motion was made on behalf of the defendant to dismiss the complaint, on the ground that the action was virtually one on an accounting by the plaintiff. The cases cited in the motion and upon the brief on appeal are, Goldberg v. Freeman, 92 N.Y.S. 237; Frost v. Weehawken Wharf Co., 33 Misc. 736, and Gutman v. Rogers, 13 N.Y.S. 891.
An examination of those cases will show that, in the first, the question of the equitable character of the action was not discussed, but that the court merely held that it was incumbent upon the plaintiff to give prima facie proof of performance of the covenants on his part; that action, like this, being to recover the balance of a deposit made with the defendant. In the second case, namely, Frost v. Weehawken Wharf Co., supra, it was held that, as the complaint did not demand a money judgment simply, but was substantially for an accounting, the court below had no jurisdiction.
In the last case, namely, Gutman v. Rogers, supra, the court held that there was no cause of action and then, by way of dictum, went on to say that the action attempted was really one in equity and that the City Court in any event had no jurisdiction.
The present case is distinguishable by the fact that here the plaintiff does not seek any accounting, but claims to have fully performed all the obligations incumbent upon him under the contract. The fact that various items of expenditure were drawn into controversy under the issues raised by the defendant's answer did not have the effect, in my opinion, of changing the character of the action, or of depriving the court of jurisdiction.
A careful review of the evidence satisfies me that the verdict is sustained by the evidence.
In my opinion the case does not contain any exceptions which constitute ground for a reversal of the judgment.
The judgment should, therefore, be affirmed, with costs.
HENDRICK and FORD, JJ., concur.
Judgment affirmed, with costs.