
    L. Rosenfeld & Company, Plaintiff-Respondent, v. Moses Solomon and Others, Defendants-Appellants.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Former adjudication — Cause of action barred or merged in general — Rule of merger.
    Municipal Courts — Procedure — Submission of controversy.
    Submission of controversy — Requisites, sufficiency and effect of submission— Affidavits — Necessity for, upon agreement as to certain facts at trial.
    An agreement by the counsel for the respective parties in open court, when a cause is reached on the calendar of the Municipal Court of the city of New York and moved for trial, upon certain of the facts involved in the issues to be tried is not required to be in writing and accompanied by an affidavit as provided in section 241 of the Municipal Court Act, as the provisions of that section relate to a submission of the entire controversy without the proceedings incident to a trial.
    Where a claim in favor of the defendant, set up as a counterclaim in an action in the Municipal Court of the city of New York, is, when so pleaded, the subject of another action in the1 defendant’s favor then pending in another court and, before the trial of the Municipal Court action, the defendant -recovers a judgment upon it, .the claim, having been merged in the judgment, cannot be proved as a counterclaim under defendant’s answer.
    Appeal by the defendants from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, rendered in favor of the plaintiff after a trial had before the court, without a jury.
    Charles L. Hoffman (Charles L. Hoffman and Henry A. Friedman, of counsel), for appellants.
    David J. Gladstone, for respondent.
   Giegerich, J.

The action is to recover the sum of $173.85 for-work, labor and services performed. The pleadings were oral and the defense a general denial; breach of contract and a counterclaim for $-4-59.19.”

"When the case was finally reached for trial, after several adjournments had been had, the following colloquy took place:

Plaintiff’s counsel: We admit that the jury has granted them a verdict of two hundred and eighty-five dollars for damages to certain goods on which we have worked; that now is in judgment, and they have their remedy by'issuing an execution. Am I to undestand that they are going to counterclaim that judgment? Defendants’ Counsel: Why, yes. The Court: There is no question of fact involved here? Defendants’ Counsel: No. The Court: Why not submit the case on a statement of facts ? ”

The record then states “ that the following statement of facts was agreed upon and dictated to the stenographer by defendants’ counsel.”

The facts so agreed upon, concisely stated, are as follows: The -defendants gent to the plaintiff 3,454 ships to he dyed according to sample. For each skin so dyed the defendants were to pay four cents. One thousand nine hundred and fifty-four were dyed perfectly, amounting to $78.16. The defendants were also indebted to the plaintiff for other work previously done in the sum of $34.19, making in all $112.35. One thousand five hundred of the skins were damaged and returned in that condition to the defendants. Prior to the beginning of this action, the defendants began an action in the City Court to recover $459.15 for the damaged skins. That action was pending when this action was begun. The defendants in this action set up as a counterclaim their damages, for which there was an action then pending in the City Court. The City Court action was tried on October 13, 1905, and resulted in a judgment in favor of the plaintiffs for $285, damages, and with costs amounting to $378.97.

The record then sets forth: “No part of said judgment has been paid, and the defendants here offer in evidence the judgment roll in that action.’

“ Received in evidence and marked ‘ Def’ts Ex. 1.’ ”

“ It is consented that a copy of the judgment roll may be used instead of the original, and that the original be returned to the custody of the clerk of the City Court, who produced it.”

“ By plaintiff’s counsel: Is there any question about admitting that the counterclaim interposed in this action was the same cause of action that was tried and disposed of by the City Court on the 13th day of October ?

“ By defendants’ counsel: The action in the City Court was begun first, and before the trial in the City Court this action was begun, and the defendants in this action interposed, as a counterclaim, the cause of action which was afterwards tried in the City Court case against the plaintiff’s claim in this case.

“ The judgment in the City Court gave the plaintiffs in that action damages for fifteen hundred (1,500') skins, and these fifteen hundred (1,500) are part of the three thousand four hundred and fifty-four (3,454) skins mentioned in this statement of facts.

“ Case to be submitted as of November 15, 1905.”

The present action was tried on October 27, 1905, and the defendants sought to use such judgment so obtained by them in the City Court as a counterclaim; but the trial justice declined to consider it and gave judgment for the plaintiff for $112.35 damages and costs.

The defendants thereupon brought-on this appeal. It is urged in their behalf that the so-called statement of facts could not be considered, because it was not signed and verified as required by section 241 of the Municipal Court Act. The said section prescribes: “ When an action or summary proceeding has been commenced according to the provisions of this act, upon its being reached for trial, the parties, being of full age, may agree upon a statement of the facts upon which the controversy depends and may present a written submission thereof to the court. Such statement must be accompanied with the affidavit of one or more of the parties to the effect that the controversy is real and that the submission is made in good faith, for the purpose of determining the rights of the parties.”

This section, together with sections 242 and 243, was taken from title II, article II, “ Submission of a Controversy, upon Facts Admitted,” sections 1279, 1280 and 1281 of the Code of Civil Procedure. Langbein’s Mum Ct. Pr. (6th Rev. ed.), 410.

Section 1279 of the Code provides: “The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action brought for the same cause. The case must be accompanied with the affidavit of one of the parties, to the effect, that the controversy is real; and that the submission is made in good faith, for the purpose of determining the rights of the parties. The submission must be acknowledged or proved, and certified, in like manner as a deed, to be recorded in the county where it is filed.”

Section 1280 provides for the filing of the submission papers, and section 1281 regulates the proceedings subsequent to such filing; and the salient features of such provisions have been practically made a part of sections 242 and 243 of the Municipal Court Act.

It will be seen, from a reading of the provisions of the Municipal Court Act above referred to, that they contemplate only a ease where the entire controversy is sought to be disposed of upon conceded facts, reduced to writing, verified as above prescribed and filed in the office of the clerk of the court (§ 242) without the proceedings incident to a trial, such as the examination of witnesses, the submission of documentary evidence, or the concessions of counsel as to certain facts, and not to a case where, as here, the respective parties have spread upon the minutes of the trial their admissions as to certain questions.

The mere circumstance that the conceded facts were called “a statement of facts” upon the trial does not make them such within the scope of section 241 of the Municipal Court Act.

Reither did the Legislature, by the enactment of the said sections of the Municipal Court Act, intend to restrict the rights of litigants to make admissions in open court, even though they might relate to the entire matters in controversy; but what it really intended to do was to extend to the Municipal Court the power possessed by courts of record to decide controversies upon the filing of an agreed statement of facts, a power which the said Municipal Court does not appear to have theretofore had.

The wisdom of the Legislature in enacting the said sections of the Municipal Court Act becomes more apparent when we reflect that, when a case is reached for trial, further attendance in court may be obviated by the filing of an agreed statement of facts and the time of the court, which would otherwise be spent in hearing the evidence or admissions of counsel and passing upon objections to the admissibility of evidence and listening to the -arguments of counsel, may be saved.

But, if these views are erroneous, then it may be fairly said that the facts so agreed upon at the trial were not “ a statement of the facts ” within the provisions of said seqtiop 241 of the Municipal Court Act, since such statement does not appear to contain all “ the facts upon which the controversy depends.”

As already stated, the so-called statement was followed by the introduction in evidence of the judgment roll in the City Court action, and this was supplemented by another colloquy between counsel during the course of which further admissions, relative to the last mentioned action and the judgment therein as well as to the pleadings in this action, were made.

Such statement as originally dictated was, therefore, in the opinion of counsel, incomplete; and, as already stated, additional admissions upon the record were deemed to be necessary in order to place before the court all the facts upon which its decision was sought.

As the action must be tried by the court upon the statement alone” (Mun. Ct. Act., § 243), it is manifest that the counsel for the respective parties did not regard the so-called statement as coming within the said provisions of the Municipal Court Act when they stipulated for the admission of said documentary evidence and had noted upon the record the said additional admissions. In no aspect, therefore, does the so-called statement of facts come within the provisions of section 241 of the Municipal Court Act; and, consequently, the facts so conceded upon the trial were properly before the court below when it decided this action.

The defendants insist that the trial justice should have allowed their counterclaim, at least to the extent of offsetting the plaintiff’s claim; but, as seen, the counterclaim was based upon the City Court judgment, and, in my opinion, he made a correct disposition of the matter when he declined to consider it.

As shown above, when the counterclaim was first interposed, another action between the same parties for the same cause of action thus sought to be counterclaimed was pending in the City Court.

Although the claim for damaged skins, so pleaded as a counterclaim, could have been litigated in this action had it been first reached for trial (Tyler v. Standard Wine Co., 52 Misc. Rep. 374; Rosenblatt v. Lesser, 59 id, 421), yet, after the recovery of the judgment for that counterclaim in the City Court, the original claim became merged in the judgment and therefore it no longer formed the basis of a counterclaim. Ives v. Goddard, 1 Hilt, 434; Lowell v. Lane, 33 Barb. 292.

Having thus become merged in the judgment, such original claim could no longer be used as an evidence of indebtedness ; and hence the right to use it for any purpose in this action was gone.

Moreover, such judgment did not exist when the present action was commenced; and, hence, under subdivision 2 of said section 151 of the Municipal Court Act, it is not available as a counterclaim.

Hnder the provisions last mentioned, a defendant may interpose a counterclaim for “ any other cause of action on contract, existing at the commencement of the action.” The judgment sought to be set up was, therefore, not such a cause of action as is contemplated by that section.

My conclusion is that the court below properly disallowed the counterclaim; and the judgment should therefore be affirmed, with costs.

Hendrick and Ford, JJ., concur.

Judgment affirmed, with costs.  