Photos v. Coufos

GUY, J. In this action to foreclose a chattel mortgage a writ of seizure was granted by the court. The defendants, other than the mortgagor, served an answer countérclaiming for the sum of $389.25 alleged to have been obtained from them through duress by the marshal; said defendants, it is claimed, [218] being compelled to pay that sum of money to prevent the marshal from carrying their property away from their place of business. When the cause was reached for trial, the plaintiff’s attorney moved to discontinue. Upon the objection of the answering defendants, the trial justice marked the action discontinued without prejudice to a new action upon plaintiff’s discontinuance, and then proceeded with an inquest on defendant’s counterclaim, and rendered judgment against the plaintiff for $418.66. A motion to vacate this judgment was denied. The learned trial justice erred in proceeding to take proof on the counterclaim after the discontinuance. The discontinuance terminated the right of the defendant to litigate the counterclaim in the action (A. M. Engel & Co. v. Davis, 81 Misc. Rep. 202, 142 N. Y. Supp. 469), and the fact that no objection was made by the plaintiff’s attorney to the procedure does not warrant defendants’ recovery. Judgment reversed, with costs, and judgment on counterclaim vacated. All concur.