Opinion
February Term, 1900.
Present — Van Brunt, P.J., Barrett, Patterson, O'Brien and McLaughlin, JJ. Van Brunt, P.J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.
This action was brought on promissory notes given for legal services. The defense is that in a certain action of Houghton v. Gage the plaintiffs neglected to interpose a counterclaim and by their failure thus to exercise proper and reasonable diligence, this defendant was damaged in the sum of $5,000. Ordinarily it might well be that with a defense of this kind the trial of an action would take more than two hours and whether it would or not would be for the judge hearing the motion to determine. With reference to this particular defense sought to be interposed, however, we have means at hand by which to measure with reasonable certainty how long it will take for its presentation. It appears that in the action of Houghton v. Gage an effort was made by the attorneys who were substituted for the plaintiffs to interpose the counterclaim referred to — for the failure to do which by the plaintiffs, the defendant claims he was damaged — and the Special Term in determining the issue said: "The action clearly appears to be framed ex delicto and the counterclaims sought to be set up is based upon facts not connected with the transaction set forth in the complaint. Therefore, the motion is denied." The order thereupon entered was subsequently affirmed, without opinion on appeal to this court. ( Houghton v. Gage, 39 App. Div. 671.) Assuming, therefore, that the conclusion of the Special Term affirmed by this court in Houghton v. Gage would in the first instance be followed by the trial judge, the effort to prove the defense would on the trial of this action be met on the part of the plaintiffs by the order and record upon appeal in Houghton v. Gage. These proceedings would not possibly consume two hours upon the trial; and so far as the plaintiffs' case is concerned, all that is required is the presentation of the notes and their introduction in evidence which, at most, would take but a few minutes. The order accordingly should be reversed, with ten dollars costs and disbursements, and the motion to place the case on the preferred calendar for the trial of short causes granted, without costs.