
    Heigel v. Willis.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11,1889.)
    1. Set-Off and Counter-Claim—When Allowable—Personal Injuries.
    In an action for damages alleged to have been caused by the negligence of the defendant in driving his wagon against the wagon of the plaintiff, a counter-claim by defendant for in j uries to his person and property, alleged to have been sustained in the same collision through plaintiff’s negligence, is proper, under Code Civil Proc. § 501, providing that a “ cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of plaintiff’s claim, ” may be the subject of counter-claim.
    
    3. Same—Amount—Justices of the Peace.
    The Code of Civil Procedure imposes no limit on the amount of a counter-claim which defendant may set up in a justice’s court, and it cannot be objected that such counter-claim exceeds the amount of a justice’s jurisdiction.
    Appeal from Erie county court.
    Action by John Heigel against R. G. Willis. Defendant appealed from a judgment rendered against him in the justice’s court to the county court, and from an order denying plaintiff’s motion to strike the cause from the trial calendar, and have the appeal heard as an appeal on the law, plaintiff appeals.
    Argued before Barker, P. J., and Haigiit, Bradley, and Dwight, JJ.
    
      William F. Sheehan, for appellant. C. W. SieTtmon, for respondent.
    
      
      As to what may be pleaded by way of set-off or counter-claim, see Sherman v. Hale, (Iowa,) 41 N. W. Rep. 48, and cases cited; Maders v. Lawrence, 2 N. Y. Supp. 159; Lapham v. Osborne, (Nev.) 18 Pac. Rep. 881, and cases cited.
    
   Dwight, J.

Issue was joined in the justice’s 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 $40; and an amended answer which, after a general denial, set up'a counter-claim for injuries to the defendant’s person, and to his 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 $1,000, for which he demanded judgment;. The plaintiff objected to the counter-claim on the grounds (1) that it “set up a new cause of action;” and (2) 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 one dollar, 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 tio counter-claim properly in the case, and therefore, since the plaintiff’s demand for judgment was for less than $50, 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: (1) Was the counter-claim one which could be interposed to the plaintiff’s cause of action in any court? (2) Was id 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 arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim;” and 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 Manufacturing Co. v. Hall, 61 N. Y. 226; Carpenter v. Insurance Co., 93 N. Y. 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 him¡self; and the defendant rice versa. For the same reason, because arising out -of the same transaction, the defendant’s two causes of action, for injuries to ihimself and property, were properly united in one counter-claim, whether the pleading was in a court of record or in justice’s court. Code Civil Proc. § 484, ■subd. 9; section 2937, subd. 1. Moreover, by subdivision 3 of the latter section the 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 counterclaim 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 counter-claim 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 a 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 $50, the case was properly appealed for a new trial. Code Civil Proc. § 8068. The motion of the plaintiff was therefore properly denied, and the order appealed from must ■be affirmed. All concur. So ordered, with $10 costs, and disbursements.  