
    John Heigel, App’lt, v. R. G. Willis, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 11, 1889.)
    
    1. Justices’ court—Jurisdiction—Code Civil Pro., § 2949.
    A justice of the peace has jurisdiction of a cause of action when the defendant’s counter-claim exceeds the sum of $200.
    2. Counter-claim—Code Civil Pro. 501 2945
    When an action is brought for damages for driving against the wagon of the plaintiff, and a counter-claim is set up for injuries to the defendant’s person and to his wagon and harness sustained in the same collision, Held, that the counter-claim was one which could be interposed to the plaintiff’s cause of action.
    3. Same—Joinder of causes of action—Code Civil Pro. , §§ 484, 2937.
    Causes of action for injuries to person and to property can be united in one counter-claim.
    Appeal from an order of the county court of Erie county, denying the plaintiff’s motion to strike the cause from the trial calendar, and have the defendant’s appeal from the judgment of the justices’ court heard as an appeal on the law.
    
      Wm. F. Sheehan, for app’lt; C. W. Sickman, for resp’t.
   Dwight, J.

Issue was joined in the justices’ court by a complaint alleging that the defendant negligently drove his wagon against the wagon of the plaintiff, in which the plaintiff was riding, to plaintiff’s damage of forty dollars, and an amended answer, which after a general denial, set up a counter-claim for injuries to the defendant’s person and to ins wagon and harness sustained in the same collision mentioned in. the plaintiff’s complaint, which .the defendant alleged was caused by the negligent and malicious conduct of the plaintiff in driving his wagon against that of the defendant. The defendant alleged damages in the sum of one thousand dollars for which he demanded judgment.

The plaintiff objected to the counter-claim on the grounds, 1st, that it set up a new cause of action,” and 2d, that it exceeded the jurisdiction of the justice. The objection was overruled and the case went to trial. The jury found a verdict for the plaintiff for $1.00, for which the justice rendered judgment, and from that judgment the defendant appealed to the county court for a new trial

The motion of the plaintiff in the county court was based upon the ground that there was no counter-claim properly in the case, and, therefore, since the plaintiff’s demand for judgment was for less than fifty dollars, the case was not within the provisions of section 3068 of the Code, and a new trial could not be had in the county court. The motion, therefore, presented two questions.

First. Was the counter-claim one which could be interposed to the plaintiff’s cause of action in any court? •

Second Was it within the jurisdiction of the justice’s court? Both of these questions, we think, were properly decided in the court below.

Section 501 of the Code of Civil Procedure, which is made applicable to justice’s court by section 2945, prescribes what, causes of action may be the subject of counter-claim. Among" others, by subdivision 1, it may be “a cause of action aiising out of the contract or transaction set forth, in the complaint as the foundation of the plaintiff’s claimand that this, prescription includes actions of tort is plainly indicated by the fact that it is contradistinguished from that contained in subdivision 2, which is confined to actions on contract. See Glen & Hall Mfg. Co. v. Hall, 61 N. Y., 226; Carpenter v. Manhattan Life Ins. Co., 93 id., 552.

The cause of action here pleaded as a counter-claim was^ on its face, one arising, out of the same transaction set forth in the "complaint as the foundation of the plaintiff’s action, viz.: The collision on the highway between the "two wagons driven respectively by the plaintiff and the defendant. It was a transaction in respect to which the plaintiff alleged negligence on the part of the defendant and damages to himself, and the defendant vice versa.

For the same reason, because arising out of the same transaction, the defendant’s two causes of action, for injuries to himself and to his property, were properly united in one counter-claim, whether the pleading was in a court of record or in justice’s court' (Code of Civ. Pro., § 484, subd. 9; § 2937, subd 1). Moreover, by subdivision 3 of the latter section, thee causes of counter-claim were, properly united, in justice’s court, even if they had not grown out of the same transaction. The objection to the defendant’s counter-claim, .based upon the nature of. the cause or* causes of action embraced therein, is not well founded. The objection that the counter-claim exceeded in amount the jurisdiction of a justice of the peace is equally untenable. It involves a misconstruction of the provision of the Code defining that jurisdiction.

Section 2862 relates only to the plaintiff’s cause of action, and the limitation of $200 applies only to the amount of the plaintiff’s claim in the several cases enumerated. Section 501, as qualified by section 2945/ while, as we have seen, prescribing the nature of the causes of action which may be made the subject of the defendant’s counter-claim, imposes no limit upon the amount of such counter-claim. The provision of the latter section, “that such a counterclaim cannot be interposed unless it is of such a nature that a justice’s court has jurisdiction of a cause of action founded thereon, recognizes the distinction suggested.

That such distinction is intended, is made entirely clear by reference to section 2949, which provides for judgment in cases where the counter-claim established exceeds $200. The reason for this discrimination between plaintiff and -defendant, in respect to the amount of their claims, is apparent. The plaintiff chooses his forum and has no excuse for coming into a justice’s court with a claim which exceeds the jurisdiction of that court.

The defendant, on the other hand, is compelled to come into the justice’s court to make his defense, and must be permitted to interpose such counter-claim as he has, without reference to its amount. Accordingly, section 2949, while it limits the judgment which may, in any event, be rendered in favor of the defendant in such a case to $200, saves the counter-claim, for which he cannot have judgment in justice’s court, for prosecution in another action, and in any court having jurisdiction thereof.

It is plain that the justice had jurisdiction of the whole case in this action, notwithstanding the amount of the defendant’s counter-claim, and that the defendant’s demand for judgment having exceeded fifty dollars, the case was properly appealed for a new trial. Code Civ. Pro., § 3068.

The motion of the plaintiff was, therefore, properly denied, and the order appealed from must be affirmed.

So ordered, with ten dollars costs and disbursements.

All concur.  