Watson v. Cowdrey , 30 N.Y. Sup. Ct. 169 ( 1880 )

Barnard, P. J.:

The defense of former adjudication is not made out. The defendants brought an action for legal services against the present plaintiff in the. Supreme Court. The answer set up as a counterclaim that the present defendants had refused to deliver up to plaintiff searches belonging to him on demand.

On the trial in the Supreme Court proof of the conversion of these searches was excluded under objection by the defendants, the then plaintiffs: 1st, because it was a counter-claim for a tort; and, 3d, because it did not grow out of the same transaction from which the then plaintiff’s claim arose. The counsel for the present defendants consented to the withdrawal of the counter-claim, and the judge thereupon struck it out. The present claim was not litigated. It was not even pleaded, as the pleadings are those portions only which remained after the withdrawal of the counter-claim by consent and by the ruling of the court. The retention of the searches claimed in this action had no relevancy on the former action. If Watson owed the Cowdreys they could retain the papers until paid. The action for services determined, therefore, the question of conversion. The retention of the searches did not defeat the action for services.

The measure of damages was a proper one. The court allowed the exact costs of procuring another search similar to the one detained. The defendant’s wrongful act occasioned this loss to plaintiff, and the judgment only made reparation.

The judgment should be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.