Joray Realty Co. v. Steinberg

Johnson, J. In a previous proceeding, by the same landlord against another tenant, the same question arose, and I directed the clerk to tax costs on the dismissal of the counterclaim. I think I will follow that here. There is no logical reason why there should be no costs against one who has imported into the proceeding what is really a separate claim and has been defeated. Costs on the defeating of a counterclaim (Mun. Ct. Code, § 164) are not expressly given therein if the counterclaim is in a summary proceeding, but for counterclaim purposes the proceeding is treated as an action. (Civ. Prac. Act, § 1425.) The two claims are separated (separate) and the second is really not one of the issues of the summary proceeding, but is an independent claim, which not only might be separated if it were equitable in its nature (Strauss & Co., Inc., v. American Credit Indemnity Co., 203 App. Div. 361), but could be tried by jury (Civ. Prac. Act, §§ 424, 425) if it was for money. In such event, costs surely ought to go to the winner. Motion to tax costs under section 164 of the Municipal Court Code granted.