
    James Feinstein and Louis Feinstein, Respondents, v. Lewis J. Jacobs and National Surety Company, Appellants.
    Second Department,
    June 17, 1910.
    Pleading—action against principal and surety—counterclaim of principal available to -both — arrest — undertaking — extent of liability.
    A judgment may be pleaded as a counterclaim.
    In an action brought against the principal and surety on an undertaking, a judgment against the plaintiff obtained by the principal before the beginning of the action is available as a counterclaim to both defendants.
    An undertaking on an order of arrest which is limited in amount to the costs óf the action and such extra costs and damages as arise from the arrest, cannot be extended to cover counsel fees paid for defending the cause of action alleged in the complaint.
    Appeal by the defendants, Lewis J. Jacobs and another, from a judgment of the Municipal Court of the city of New York, "borough of Brooklyn, in favor of the plaintiffs, rendered on the 14th day of February, 1910.
    
      Cass & Apfel, for the appellants.
    
      Jacob L. Holtzman, for the respondents.
   Carr, J.:

This appeal from a judgment of a Municipal Court brings up for review questions of law only, as the case was tried on an agreed statement of facts. The defendants are the principal and surety on an undertaking for an order of arrest heretofore granted in an action in which the defendant Jacobs was plaintiff and the present plaintiffs' were defendants,' The plaintiffs were arrested in that action, which subsequently terminated in their favor, arid they have recovered in this action a judgment of $302 for damages and costs. In this case, however, the defendants pleaded as a counterclaim a judgment held by the defendant Jacobs against the plaintiffs for the sum of $478.41, which had been obtained by him against the plaintiffs before the beginning of this action. The trial court did not allow this counterclaim, and the appellants attack the judgment entered below on this as-well as other grounds. It is now sought to justify the disallowance of the counterclaim on two grounds. The first is that the judgment pleaded as a counterclaim was not in favor of both defendants, and, therefore, could not be pleaded in counterclaim by both of them. This action is against defendants; one of whom is a .principal and the other a surety, and the defense pleaded was available to both. (Springer v. Dwyer, 50 N. Y. 19.)

The further ground assigned in favor of the judgment of the trial court is that, as the action was on a contract, a judgment previously obtained could not be pleaded as a counterclaim on the theory that it was not a “ cause of action ” in the sense of section 501 of the Code of Civil Procedure. This question has been so frequently decided that it should now be considered at rest. That a judgment may be so pleaded as a counterclaim has been long established. (Cottle v. New York, W. S. & B. R. Co., 27 App. Div. 604, 611; Badlam v. Springsteen, 41 Hun, 160 ; Cornell v. Donovan, 3 N. Y. St. Repr. 261; 13 id. 741; 14 id. 687; Wells v. Henshaw, 3 Bosw. 625 ; Taylor v. Mayor, etc., 82 N. Y. 10.) The counterclaim should have been allowed by the trial court. The court below seems to have allowed the plaintiffs to recover tlielr expenses for counsel fees in the trial of the action in which the order of arrest was granted, as well as counsel fees in an appeal taken from the judgment in that action by the defendant Jacobs. This was in excess of the obligation of the undertaking, which was limited only to the costs of the action and such extra costs and damages as arose from the arrest itself, and cannot be extended to the counsel fee paid for defending the cause of action set up in the complaint. (Sutorius v. North, 13 N. Y. Supp. 557; Sperry v. Hellman, Id. 899.)

The judgment of the Municipal Court is, therefore, reversed and a new trial ordered, cost.s to abide the event.

Woodward, Jenks, Burr and Rich, JJ., concurred;

Judgment of the Municipal Court reversed and-new trial ordered, ¡costs to abide the event.  