H. E. Taylor & Co. v. Fitzgerald

Appellate Terms of the Supreme Court of New York

H. E. Taylor & Co. v. Fitzgerald

135 N.Y.S. 1092

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 21, 1912

StatusPublished

This text of 135 N.Y.S. 1092 (H. E. Taylor & Co. v. Fitzgerald) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. E. Taylor & Co. v. Fitzgerald, 135 N.Y.S. 1092 (N.Y. Ct. App. 1912).

Pincite

Opinion

BIJUR, J.

Both plaintiff and defendant were creditors of one Sloan, a funeral director, and by agreement plaintiff undertook to handle all the receipts of Sloan’s business and pay certain proportions thereof to defendant. While plaintiff sues for goods sold and delivered, which claim is not contested, the defendant counterclaims for his share of the income of the undertaking business. This counterclaim is a matter of equitable jurisdiction; that is, a claim for an accounting by the defendant, in which he asserts that the plaintiff acted as trustee for the defendant of sums of money received. Marvin v. Brooks, 94 N. Y. 71, 80, 81. The Municipal Court is therefore without jurisdiction to entertain the action thereon.

As the defendant admits the indebtedness sued for by plaintiff, judgment would ordinarily be directed on appeal in favor of plaintiff; but as the defendant may, in view of our decision, be advised to take steps to protect himself in respect of the counterclaim, a new trial is granted, with costs to appellant to abide the event. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BIJUR, J.

Both plaintiff and defendant were creditors of one Sloan, a funeral director, and by agreement plaintiff undertook to handle all the receipts of Sloan’s business and pay certain proportions thereof to defendant. While plaintiff sues for goods sold and delivered, which claim is not contested, the defendant counterclaims for his share of the income of the undertaking business. This counterclaim is a matter of equitable jurisdiction; that is, a claim for an accounting by the defendant, in which he asserts that the plaintiff acted as trustee for the defendant of sums of money received. Marvin v. Brooks, 94 N. Y. 71, 80, 81. The Municipal Court is therefore without jurisdiction to entertain the action thereon.

As the defendant admits the indebtedness sued for by plaintiff, judgment would ordinarily be directed on appeal in favor of plaintiff; but as the defendant may, in view of our decision, be advised to take steps to protect himself in respect of the counterclaim, a new trial is granted, with costs to appellant to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

135 N.Y.S. 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-e-taylor-co-v-fitzgerald-nyappterm-1912.

Opinion

Related

Cite This Page — Counsel Stack