Opinion
November Term, 1899.
William H. Stockwell, for the appellant.
Edward Schenck, for the respondents.
This action was brought to foreclose two mortgages upon certain premises in the city of New York. The defendants, in their answer, set up a counterclaim alleging that the real party in interest was the Title Guarantee and Trust Company of the City of New York, which was the assignor of the plaintiff, and that they had a cause of action against said company because of a breach of a policy of insurance of title. The plaintiff served a reply consisting of a general denial. A motion was made to have the issues raised by this counterclaim and reply tried before a jury, which motion was granted, and the court settled certain issues to be tried by the jury.
The right to such trial is asserted by the defendant as matter of right, and the motion was granted by the court upon that ground. This right is claimed under section 974 of the Code of Civil Procedure. The language of that section is as follows: "Where the defendant interposes a counterclaim and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment."
It is perfectly apparent that the defendant could obtain no affirmative judgment upon his counterclaim as against the plaintiff in this foreclosure action. At most, if he established a cause of action, it would be only an offset as against the plaintiff's claim and he could obtain no affirmative judgment against the plaintiff. It is manifest from a reading of the section that it is only in those cases where an affirmative judgment may be obtained by the defendant against the plaintiff for the cause of action set up in the counterclaim that the section applies. The language is "and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff." Now, as has already been observed, the defendant could not bring an action against the plaintiff for the cause of action attempted to be alleged in the counterclaim, and he could not obtain any affirmative judgment against the plaintiff. Hence the conditions required by the section are entirely absent from the case at bar.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
BARRETT, PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.