
    Rundlett & Reynolds, Incorporated, Respondent, v. W. Van R. Whitall, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Municipal Courts—• jurisdiction — Municipal Court of city of New York — pleading — transfer to another court or district — judgments.
    Where, in an action brought in the Municipal Court of the city of New York to recover a sum of money, defendant asks an affirmative judgment of $500 on a counterclaim of $1,700, and it appears on the trial that a prior action is pending between the same parties in the County Court of Westchester county upon the same cause of action alleged in the counterclaim, a dismissal of the counterclaim, though without prejudice, is reversible error.
    A judgment- in the Municipal Court upon his counterclaim would not bar a larger recovery in the County Court action, and thependency thereof was no bar to the counterclaim in the Municipal Court action.
    
      Appeal by the defendant from a judgment of the ' Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff.
    Waldo-& Ball, for appellant.
    Henry G. K. Heath, for respondent.
   Lehman, J.

The plaintiff has brought an action for the sum of $350.04 in the Municipal Court. The - answer sets up a counterclaim alleging damages of $1,700 and asking an affirmative judgment for a portion of the said claim no.t exceeding $500. It appeared at the trial that a prior action was pending between the same parties 'in the County 'Court of Westchester county upon the cause of action alleged in the counterclaim." The learned trial justice thereupon dismissed the counterclaim without prejudice. It seems to me that this-dismissal was error. It is true that the plea of another action pending is ordinarily good against a cause of action alleged in a counterclaim as well as against a cause of action alleged in ¿ complaint (Ansorge v. Kaiser, 22 Abb. N. C. 305), .and the Code (§ 495) expressly provides that where this objection appears on the face of the counterclaim a demurrer thereto will lie. The object of the rule that the pendency of a former action between the same parties for the same cause may be pleaded in abatement to the -second action “ is to prevent vexation and the plea can never prevail except where the second suit is vexatious.” Compton v. Green & Ide, 9 How. Pr. 228. There can he no doubt but that a suitor having a claim against another person has the right either to bring an independent action or in a proper case to interpose his cause of action as a counterclaim or set-off. -Ordinarily where he has chosen to bring an independent action he may interpose his claim as a counterclaim only after discontinuing his prior action, for the law does not look with approval upon the pendency of two actions where full relief may be afforded in one action. The Municipal Court has not, however, jurisdiction to award judgment upon a counterclaim for more than the ‘sum of $500. This defendant, therefore, by interposing his counterclaim cannot obtain the full relief claimed upon his cause of action. Nevertheless he is not entirely precluded either from interposing his claim as a counterclaim or from obtaining in another action the reliéf which the Municipal Court cannot give him. By section 157 of the Municipal Court Act he is expressly given both these rights. A judgment in the Municipal Court upon his counterclaim would not bar a larger recovery in another action in a court of greater jurisdiction, and the pendency of an action in such a court is not vexatious and should not bar the defendant from interposing his counterclaim.

Judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Guy and Bijue, JJ., concur.

Judgment reversed and new trial ordered.  