Sowden & Co. v. Murray

BISCHOFF, J.

The fact that the defendant had brought an ac-

tion in the City Court to recover damages for injuries to a garment when in the plaintiff’s hands for alteration, was not available as a defense to this action for work, labor, and services, notwithstanding that the defendant’s claim, in her action, was based upon the plaintiff’s alleged improper performance of the work. The plaintiff was entitled to maintain a cross-action, and was not bound to interpose its claim as a cross-demand to the defendant’s suit. Nat Fire Ins. Co. v. Hughes, 189 N. Y. 84, 88, 81 N. E. 562, 12 L. R. A (N. S.) 907 and cases cited. The defense of another action pending being unavailable, judgment was properly rendered for the plaintiff upon the facts in evidence, and the denial of the motion to stay the action, pending the determination of the action in the City Court, certainly presents no ground of prejudice to the defendant. Such a stay, necessarily extending beyond the statutory limitation of five days (Municipal Court Act [Raws 1902, p. 1489, c. 580] § 1, subd. 15), was beyond the power of the court to grant.

Judgment and order appealed from affirmed, with costs. All concur.