Opinion
May 2, 1906.
E.A. Griffith, for the appellant.
Willis C. Ellis, for the respondent.
The judgment of the County Court and the order of May 18, 1904, should be reversed, with costs, and the case held for trial in County Court.
There were two trials in Justice's Court. The first one resulted in a disagreement of the jury. The original complaint was in writing, but is not contained in the record. The answer thereto was merely a general denial. Before the second trial amended pleadings were made and filed, which are in the record. When the second trial was called the defendant did not appear, and the plaintiff gave his evidence and took judgment by default. The defendant appealed from such judgment to the County Court and demanded a new trial in the appellate court, under section 3068 of the Code of Civil Procedure, but required a return of the evidence taken at the trial in Justice's Court. The return was made and the evidence was included therein. The County Court held the appeal was upon questions of law only, that no new trial could be had in County Court, and upon the evidence and proceedings affirmed the judgment of Justice's Court. The plaintiff in his amended complaint demanded judgment for forty-nine dollars only. The defendant in his amended answer set up a counterclaim and demanded judgment therein for sixty-four dollars. The question of a new trial in County Court was, therefore, dependent upon the counterclaim and whether it was properly interposed in the case. The amended complaint set out a cause of action in tort, viz., the sale of a horse, the making of false and fraudulent representations on the sale, and the reliance of the plaintiff thereon, and resulting damages. The answer admitted the sale of the horse and denied all other allegations in the complaint, and then set up a counterclaim for balance of the purchase price of the horse, unpaid. This counterclaim was upon contract, the plaintiff's cause of action was in tort, but both causes of action arose out of the same transaction, the sale of the horse, and the counterclaim was, therefore, properly interposed under sections 2945 and 501 and 502 of the Code of Civil Procedure. This rule was recognized in Green v. Parsons (27 N.Y. Wkly. Dig. 544); Hall v. Werney ( 18 App. Div. 565); Carpenter v. Manhattan Life Ins. Co. ( 93 N.Y. 552).
If the plaintiff's cause of action was merely for breach of contract of warranty, then clearly the counterclaim on contract also was permissible under the sections of the Code referred to.
There is another view of this case which would require a reversal of the judgment of the County Court, though not the order requiring the appeal to be regarded as one on questions of law only, and not for a new trial. The complaint, as we have said, was one in tort, but the proof given before the court was merely of a breach of warranty. The judgment of the justice was not, therefore, supported by the evidence under the pleadings and would have to be reversed for that reason. If the complaint should be regarded as in contract merely, breach of warranty, the evidence would support it, but in that event the counterclaim being on contract, would certainly entitle the defendant to a new trial in County Court, and the judgment of the County Court and the order of May eighteenth would have to be reversed for that reason.
We think, however, whether the complaint was on contract or in tort, the counterclaim was properly interposed, and the appeal to the County Court entitled the defendant to a new trial in that court.
All concurred.
Judgment of County Court and order of May 18, 1904, reversed, with costs, and case held for trial in County Court.