
    Charles J. LaPlant, Respondent, v. Homer E. Johnson, Appellant.
    
    Third Department,
    November 2, 1938.
    
      J. Ernest Wharton, for the appellant.
    
      David B. Alford, for the respondent.
    
      
      Affg. 163 Misc. 96.
    
   Rhodes, J.

The only question of moment presented by the appeal is whether the action is barred by a judgment previously rendered in a Justice’s Court in an action between the parties involving the cause of action herein.

Plaintiff LaPlant owed to the defendant Johnson a feed bill of three dollars and ten cents. Johnson called at the residence of LaPlant to buy a turkey; having obtained it he put it in his car telling LaPlant that he would apply the purchase price on account. He then started to drive away, but LaPlant objected to his taking the turkey without payment therefor and tried to prevent him from leaving therewith, whereupon it is charged that Johnson then and there assaulted LaPlant by willfully driving his car against him, causing injuries for which he has recovered.

Johnson thereafter commenced an action in a Justice’s Court against LaPlant to recover for merchandise sold and for damages to his automobile caused by LaPlant at the time of the assault. In that action LaPlant interposed a counterclaim alleging the same assault involved herein. In that action the justice dismissed the counterclaim and rendered judgment in favor of plaintiff Johnson. It is that judgment which is asserted as a bar to recovery herein.

Subdivision 3 of section 4 of the Justice Court Act declares that a justice of the peace cannot take cognizance of a civil action for assault or battery. The record does not disclose whether the counterclaim was dismissed by the justice of the peace because of lack of jurisdiction or in an attempt to pass upon the merits. At any rate, having no jurisdiction the judgment rendered by him as to the counterclaim is not a bar to the present action. (Blin v. Campbell, 14 Johns. 433.)

The judgment and order should be affirmed, with coste to the respondent.

Hill, P. J., McNamee, Bliss and Heffernan, JJ., concur.

Judgment and order affirmed, with costs.  