Bennett v. Edison Electric Illuminating Co.

Haight, J. This action was brought to recover the contract price for digging two wells at the defendant’s electric lighting station. The contract was in writing, and as written, the defendant agreed to pay the plaintiffs $10 per one thousand gallons of watér per day of twenty-four hours, upon completion of the wells and after their test. The answer interposed by the defendant alleged, for a defense and by way of counterclaim, that the agreement was to pay $1.00 per thousand gallons of water furnished, instead of $10.00 as stated in the contract, and that the signing of the contract by the defendant’s superintendent was procured through false representations made with reference to the contents of the instrument and with intent on the part of the plaintiffs to defraud the defendant. The. answer, among other things, demanded the reformation of the contract by the insertion therein of $1.00 in the place of $10.00. When the case was called for trial the defendant’s counsel moved that the equitable issue raised by the pleadings be first tried by the court. This motion was denied and an exception was taken. The defendant’s motion was based upon section 974 of the Code of Civil Procedure, which provides as follows: “ Where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact, arising thereupon, is the same, as if it arose in an action, brought by the defendant, against the plaintiff, for a cause of action stated in the counterclaim-, and demanding the same judgment.” In Mackellar v. Rogers (109 N. Y. 468, 471), Danforth, J., referring to the provisions of this section of the Code, says : “ The conditions upon which the right depend, exist in favor of the defendant, but that right is not absolute or unqualified; it is relative and limited, and, in the words of the heading of section 974, ‘ within ’ certain ‘ foregoing sections ’ only is ca counterclaim to be deemed an action.’ We *133 find nothing there which required a court to sanction the course pursued by the defendant. If tolerated, it would enable a person sued to postpone and delay the plaintiff in the prosecution of a just cause until at a convenient time and before another tribunal he had presented a cause of action subsequently brought into court, and the determination of which has no necessary connection with the plaintiff’s demand in suit. It would, moreover, permit him to do this after selecting a different court for the trial of his issue, and evade that trial at the moment it was to commence by the expression of his mere wish to go into a different forum, thus putting his adversary at defiance and interrupting the court in the transaction of business which he himself had in a formal manner brought before it.” We do not at this time deem it necessary to determine whether the matter alleged in the answer constitutes an equitable counterclaim. For, assuming it to be a counterclaim, the matter alleged also constitutes a defense and relieves the defendant as fully as the allowance of the counterclaim. If the signature of the defendant to the contract was procured through fraud, it was not the defendant’s contract and that defense was open and available to the defendant in any action at law brought upon the contract. The provisions of the Code referred to, we think, have no application to an issue of this character, but were intended to provide for the mode of trial of an issue arising upon a counterclaim in which the facts alleged do not constitute a defense and are not available as such. The questions of fact arising upon the trial have been finally disposed of by a unanimous affirmance of the judgment entered upon the verdict. There were some exceptions taken to the admission and rejection of evidence and to the refusal of the court to charge the jury as requested, but these exceptions, we think, were properly disposed of in the Appellate Division. The judgment should be affirmed, with costs.