Kellogg v. Gage

Appellate Division of the Supreme Court of New York

Kellogg v. Gage

62 N.Y.S. 818, 48 A.D. 623

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 23, 1900

StatusPublished

This text of 62 N.Y.S. 818 (Kellogg v. Gage) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kellogg v. Gage, 62 N.Y.S. 818, 48 A.D. 623 (N.Y. Ct. App. 1900).

Pincite

Opinion

PER CURIAM.

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 counter[819]*819claim, 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 counterclaim 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, 57 N. Y. Supp. 1139. 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 $10 costs and disbursements, and the motion to place the case on the preferred calendar for the trial of short causes granted, without costs.

VAN BKUNT, P. J., dissents.

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

PER CURIAM.

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 counter[819]*819claim, 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 counterclaim 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, 57 N. Y. Supp. 1139. 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 $10 costs and disbursements, and the motion to place the case on the preferred calendar for the trial of short causes granted, without costs.

VAN BKUNT, P. J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

62 N.Y.S. 818, 48 A.D. 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellogg-v-gage-nyappdiv-1900.

Opinion

Related

Cite This Page — Counsel Stack