Wasserman v. Taubin

Gaynor, J. (concurring) :

Section 974 of the Code of Civil Procedure provides that where the defendant pleads a counterclaim, “ the mode of trial of an issue of fact arising thereupon, is the same as if it arose in an action ” brought for the cause of action alleged in the counterclaim. It says the “ mode ” of trial, and not the place, or particular part or subdivision of the court, or court room, in which the trial is to be tried, as some have interpreted it from sheer lack of experience in the trial of causes and of familiarity with legal nomenclature and terminology. A counterclaim must tend to defeat or dimmish the plaintiff’s recovery; and an equity cause of action arising out of the same contract or transaction as that set out in a common law complaint may be pleaded thereto (Code Civ. Pro. § 501). The “ mode ” of trial thereof is the same as if an action had been brought upon it, viz., it is tried before a Judge, who has to make and file a written decision, viz.; findings of fact and conclusions of law. There is nothing whatever in the way, in the Code or in actual practice, of that being done by the trial Judge who presides at the jury trial of the issues raised on the complaint, i. e., by the denials in the answer, and at the same trial in which such jury issues are tried. The jury having rendered their verdict, the trial Judge would then make and file his decision on the counterclaim. If in the present case, for instance, the verdict should be for the plaintiff on the issues raised on the complaint, the trial Judge would also have to- decide for the plaintiff on the counterclaim, the issues of fact on the complaint and on the counterclaim being the same; unless he should set the verdict aside, in which case he would make and file a decision for the defendant on the counterclaim, and the judgment thereon would be res a&jucLicata of the cause of action alleged in the complaint if it should be brought on for trial again. In either case, all of the issues would be completely disposed of. This was all perfectly well understood until more recent years, and is still understood by lawyers of science and experience in the practice of the law, and I am not willing to give it up out of mere regard to any mistaken decision. In this case the plaintiff had the right to file a note of issue for the jury calendar of his cause of action, and the defendant had the right to file a note of issue for the equity calendar of his counterclaim. If the cause should be reached for trial on the jury calendar first, all of the issues could be then tried in the manner already stated, but if the issues on the equity calendar should be reached first, they could be tried in the equity part of court, and the ■judgment thereon would he res adjudicates of the issues on the jury calendar when they should be reached.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.