
    Robert Thomson Company, Appellant, Respondent, v. Thomas R. Levis, Respondent, Appellant.
    Fourth Department,
    May 5, 1909.
    Contract—breach of warranty—other action pending — different causes of action.
    Proof of a counterclaim interposed in an action in a Municipal Court to recover for work and materials furnished in repairing an automobile purchased by plaintiff from the defendant, which sets up a breach of warranty in the sale of the automobile, should not he excluded because subsequent to the service of the summons and complaint but before the interposition of the counterclaim, the defendant brought an action in the Supreme Court against plaintiff and another for a breach of the same warranty, where in the Supreme Court action it was alleged that the plaintiff acted as agent in making the sale and warranty and in the Municipal Court the counterclaim set up that plaintiff acted as principal.
    Cross-appeals by the plaintiff, the Robert Thomson Company, and the defendant, Thomas R. Levis, from a judgment of the County Court of the county of Monroe, entered in the office of the clerk of said county on the 4th day of May, 1908, modifying a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff.
    .William H. Tompldns, for the plaintiff.
    
      Elbridge L. Adams and George Carnahan, for the defendant.
   Williams, J.:

The judgment of the Municipal and County Courts should be reversed and a new trial ordered in Municipal Court, with costs- in both- courts to the defendant Levis to abide event.

The action was brought- to recover for labor-and materials furnished and used in repairing an automobile purchased by defendant from- plaintiff.

The answer was a general denial except a little cylinder oil and gasoline not exceeding $25 in value, and then a counterclaim for damages by reason of a breach of warranty upon the sale of the automobi'le' to'the amount of $3,500. There was no reply to the Counterclaim, of course, but the plaintiff contended there was another action pending between the parties in Supreme Court for the same cause of action as that alleged in the counterclaim. The summons and complaint in that action- were- put in evidence, and' then the Municipal Court excluded all evidence as to the breach of warranty set up in the counterclaim, and rendered judgment for the amount of the plaintiff’s claim, $444.61, and costs. On appeal, the County Court approved of the decision of the Municipal Court in excluding evidence of- the counterclaim, held that there was no proof as to $-109:45 of plaintiff’s- claim, and,- therefore, reduced the- judgment by that amount and affirmed the same, without costs to either party.

First. As to the counterclaim. The Municipal Court action was commenced January 12, 1907, and the answer containing the counterclaim was served March 14, 1907. The action in the Supreme Court was in favor of this defendant Levis, -and1 against this plaintiff, Robert Thomson Company, and Pope Motor Car Company, and the summons and complaint therein were served January 17 and 22, 1907. The Municipal Court action was, therefore, commenced first, but the counterclaim was not interposed until after the Supreme Oburi action was begun. The parties to the: two actions were not the same, and, furthermore, the causes of action were different in this respect. In the Supreme Court action it was alleged that the automobile was sold by the Thomson Company as agent for the Pope Motor Car Company, and that the warranty was made by the Thomson Company as such agent. There being no undisclosed principal or agent, the warranty by the agent rendered the principal alone liable. There was no liability alleged against the agent. (That case was tried, the complaint dismissed as to the alleged agent, and was in this court on appeal as against the principal only, as oiir records show.)

In the Municipal Court case a good cause of action was alleged, a sale of the automobile by-the Thomson Company as principal and a warranty by it as principal on such sale. It would seem, therefore, that the defendant should have been permitted to prove the counterclaim, and have such benefit thereof as he was entitled to.

It ■ is not necessary to determine now just what benefit he -could derive from the proof of the counterclaim.

He had some rights, apparently, under sections 2862, 2863, 3226, 3227, 2947, 2948 and-2949.

If we are right in the views here expressed, a reversal of the judgment of both courts and a new trial must result.

Second. We, do not deem it essential to review the evidence upon the question of the reduction by the County Court of the judgment of the Municipal Court. The evidence may be different upon the ■new trial, and this question may not be involved.

All concurred, except McLennan, P„ JY, not sitting.

Judgment of 'County Court and judgment of Municipal .-.Court reversed and new trial ordered in Municipal Court on the 17th day of May, 190.9., ,at ten o’clock in the forenoon, with costs ¡in all courts • to Appellant Levis to .abide -event.  